Adirondack Research posts its 2017 Research Newsletter on the Internet

Adirondack Research posts its 2017 Research Newsletter on the Internet

Adirondack Research Director Ezra Schwartzberg has announced that the organization has posted its Annual Adirondack Research Newsletter, In the Field, on the Internet in the unique form of a StoryMap – a medium that allows the organization to bring its 2017 newsletter to life using maps, photos, graphics, video and text.

The Newsletter is best viewed on a computer, but may be read on a smartphone turned sideways. Click here to view the newsletter: http://arcg.is/1XiKb0

Information about Adirondack Research is posted on the Internet at http://adkres.org/.

Hearing Officer is entitled to weigh the evidence in making his or her decision when the parties' present conflicting medical evidence

Hearing Officer is entitled to weigh the evidence in making his or her decision when the parties' present conflicting medical evidence 

2017 NY Slip Op 02270, Appellate Division, Fourth Department

A  police officer [Petitioner], filed a CPLR Article 78 petition seeking to annul the determination of the Hearing Officer that he was medically qualified to perform his light duty assignment and thus not entitled be continued on  General Municipal Law §207-c leave.

Petitioner was receiving benefits pursuant to §207-c as a result of prior on-duty injuries. Returning to work in a light-duty capacity, Petitioner twisted his ankle while at work and allegedly exacerbated his prior injuries.

Following a hearing, the Hearing Officer determined that Petitioner was able to perform his light-duty assignment notwithstanding the injury to his ankle and thus Petitioner was not totally disabled. Accordingly, the employer discontinued Petitioner's §207-c leave status.

The Appellate Division said it agreed with Petitioner's employer that the Hearing Officer's determination that Petitioner could continue to perform the light duties to which he was assigned was supported by substantial evidence.

The court said that although Petitioner presented evidence suggesting that he was not able to work at all, "the Hearing Officer instead credited other evidence that Petitioner could perform a light-duty assignment" and unanimously dismissed the petition.

In the words of the Appellate Division, "[t]he Hearing Officer was entitled to weigh the parties' conflicting medical evidence" and a court "may not weigh the evidence or reject [the Hearing Officer's] choice where the evidence is conflicting and room for a choice exists."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02270.htm

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Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html

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Claimant ineligible to receive unemployment insurance benefits after failing to comply with certification and registration requirements

Claimant ineligible to receive unemployment insurance benefits after failing to comply with certification and registration requirements

2017 NY Slip Op 06040, Appellate Division, Third Department

Claimant, a teaching assistant, filed a claim for unemployment insurance benefits after she was "laid off from her job" in April, 2015.

The Department of Labor initially found Claimant eligible to receive benefits, but this determination was overruled by an Administrative Law Judge [ALJ] in October 2015 following a hearing. Claimant appealed and, in March 2016, Claimant was notified that the Unemployment Insurance Appeal Board had reversed the ALJ's decision and found that Claimant was eligible to receive such benefits.

While her appeal was pending, however, Claimant "failed to certify" for benefits between December 21, 2015 and March 6, 2016 in accordance with Labor Law §596 and the Department found her ineligible for benefits during this time period.

This Department's determination was sustained by an ALJ following a hearing. The Board affirmed the ALJ's ruling, explaining that the Claimant was ineligible to receive unemployment insurance benefits because she did not comply with Labor Law §596 certification and registration requirements.

Claimant had contended that she "failed to certify" during the time period in question because she did not feel comfortable doing so "given the ALJ's decision finding her ineligible for benefits." Claimant, however,  admitted that both the Unemployment Insurance Handbook and the ALJ's decision advised her that she should continue to certify for benefits while her case was on appeal and that "she made a mistake by not doing so."

The Appellate Division denied Claimant's challenge to the Board's ruling, explaining that "[i]t is well settled that registering and certifying for benefits in accordance with the Labor Law and applicable regulations is a necessary prerequisite to eligibility for benefits." Further, said the court, "[w]hether good cause exists to excuse a claimant's noncompliance with these requirements is a factual issue for the Board to resolve."

The Appellate Division held that, considering the relevant facts in this case, substantial evidence supported the Board's finding that good cause did not exist to excuse Claimant's "failure to certify" and its conclusion that she was ineligible to receive benefits. Thus, said the court, it "found no reason to disturb the Board's decision."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06040.htm

From the LawBlogs

From the LawBlogs

Source: Findlaw ADA, August 9, 2017

Esparza v. KS Industries, L.P.  -(California Court of Appeal) - Affirming an order denying the motion to compel arbitration insofar as it denies arbitration of the Private Attorneys General Act representative claims seeking civil penalties that are paid to the Labor and Workforce Development Agency and directing additional proceedings to determine the plaintiff's intent regarding their pursuit of other claims in the case of a former employee alleging employment violations.

Keep Reading

Baker v. Italian Maple Holdings, LLC - (California Court of Appeal) - Reversing the trial court's order denying defendant's motion to compel arbitration in the case of a woman entered into a nursing facility who executed an arbitration agreement that included a 30-day cooling off period for rescission during which time she died because the fact of her death did not render the agreements unenforceable.

Keep Reading

Kaiser Foundation Health Plan, Inc. v. The Superior Court of Los Angeles County - (California Court of Appeal) - Issuing a preemptory writ of mandate directing the trial court to vacate a judgment confirming an arbitration panel's award and entering a new order dismissing a petition to vacate the award because the award was not an award for which the court held jurisdiction to confirm.

Keep Reading

The party seeking workers' compensation benefits bears the burden showing a causal connection between his or her employment and the claimed disability

The party seeking workers' compensation benefits bears the burden showing a causal connection between his or her employment and the claimed disability

2017 NY Slip Op 06013, Appellate Division, Third Department

A firefighter [Claimant], diagnosed with prostate cancer at the age of 51, filed a claim for workers' compensation benefits alleging that he was exposed to toxic fumes and asbestos as a firefighter and that he contracted prostate cancer as a result.

The claim was controverted* and ultimately the Workers' Compensation Board determined that the medical opinions in the record supporting a finding of causal relationship were unconvincing and speculative and, therefore, insufficient to support a finding of causal relationship between Claimant's prostate cancer and his employment as a paid firefighter.

Claimant appealed the Board's determination. The Appellate Division sustained the Board's determination, explaining that "... the party seeking benefits ... bore the burden of establishing — by competent medical evidence — a causal connection between his [or her] employment and the claimed disability."** Further, said the court, "[w]here medical proof is relied upon to demonstrate the existence of a causal relationship, it must signify a probability of the underlying cause that is supported by a rational basis and not be based upon a general expression of possibility."

According to the decision, Claimant responded to about 577 fire calls, which included roughly 100 actual fires, over his 24-year career as a firefighter, and he filled out an exposure report on at least four occasions when he felt that he had been exposed to something out of the ordinary. Claimant, however, indicated that he is not specifically aware of the various chemicals or toxins to which he might have been exposed.

The record also indicated that Claimant had periodically working for a friend in the plumbing and heating business to clean furnaces and other related tasks and that "prior to becoming a firefighter Claimant was employed as a deliverer of kerosene for at least eight years."

One expert testified that "epidemiologic studies have demonstrated an increased risk of prostate cancer among firefighters and that [Claimant], over his 24-year career, would have had ample time for exposure to carcinogenic materials."

A second expert testified that "the epidemiological studies linking firefighting and certain types of cancer fail to adequately examine environmental and demographic factors that would affect the risk of cancer" and that "it was not possible to definitively ascertain whether Claimant's prostate cancer — a "very common disease" among men — was caused by his employment as a firefighter given the lack of information regarding what Claimant was specifically exposed to while fighting fires."

A third expert, an oncologist appointed as the impartial specialist by the full Workers' Compensation Board, reported that, based upon his review of the relevant records, there was no evidence of any elevated risk factors typically associated with prostate cancer and that the incidence of new cases of prostate cancer in Claimant's "age group is well under 0.5%. Although this expert concluded that it was "reasonable to assume that [Claimant's] employment as a firefighter for 24 years may have [had] a causal relationship to the development of prostate cancer," he also testified that he "was unaware of Claimant's other previous employment consisting of cleaning furnaces and delivering kerosene or of the minimal number of exposure reports submitted by Claimant during his 24-year career as a firefighter and that, upon being apprised of this information, he could not assign a causal relationship."

The Appellate Division found that, in consideration of the conflicting evidence, "including the prevalence of prostate cancer and the other possible explanations for Claimant contracting the condition," the Workers' Compensation Board "acted within its discretion" in characterizing as speculative, and ultimately rejecting, the reports of two of the experts who testified to the existence of a causal relationship.

In the words of the majority of the court, Judge Egan dissenting, "Absent sufficient medical evidence to establish a causal relationship between [Claimant's] employment and his condition, we are unable on this record to conclude that the full Board's determination lacked a rational basis and was not supported by substantial evidence."

* An insurance carrier can contest, i.e., controvert, a Workers' Compensation claim for a variety of reasons, including, but not limited to, alleging that the injury was not related to work, was self-inflicted or the employee is not injured to the extent that he or she is claiming. An employer can also request that the insurance carrier contest the claim.

** The court also noted General Municipal Law §207-kk creates a rebuttable presumption that a firefighter who develops certain enumerated types of cancers incurred them in the course of performing his or her duties, "thereby eliminating the burden of proving causation" on the firefighter and places the burden of rebutting the presumption on the party controverting the claim. However, the explained the court, because §207-kk applies only in the event of the total or partial disability or death of a paid member of a fire department employed by cities have a population of one million or more, "the presumption is inapplicable here."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06013.htm

___________________

Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html

___________________

Two New York federal judges refuse to dismiss website accessibility cases

Two New York federal judges refuse to dismiss website accessibility cases

By Kristina M. Launey, Esq. and Minh N. Vu, Esq.

Two New York federal judges recently said that the ADA covers websites (even those not connected to a physical place) and one held that working on improving the accessibility of one’s website does not make the ADA claim moot.

The article by Ms. Launey and Ms. Vu of Seyfarth Shaw is posted on the Internet at:

http://www.adatitleiii.com/2017/08/two-new-york-federal-judges-refuse-to-dismiss-website-accessibility-cases/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&utm_campaign=87a87c35f5-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_decb46f1f5-87a87c35f5-72622305

Second Circuit Court of Appeals to again consider if discrimination based on sexual orientation is prohibited by Title VII

Second Circuit Court of Appeals to again consider if discrimination based on sexual orientation is prohibited by Title VII

Zarda v Altitude Express dba Skydive Long Island, USCA, Docket No. 15-3775

In Simonton v Runyon, 232 F.3d 33,* the Second Circuit said that "[w]hen interpreting a statute, the role of a court is limited to discerning and adhering to legislative meaning." The court then ruled that "[t]he law is well-settled in this circuit and in all others to have reached the question that Simonton has no cause of action under Title VII [the Civil Rights Act of 1964] because Title VII does not prohibit harassment or discrimination because of sexual orientation."

The Second Circuit Court of Appeals has voted to conduct an en banc** rehearing of a three-judge panel’s decision in Zarda v Altitude Express*** declining Zarda's request that it overturn Simonton, a 2000 decision by the Second Circuit.

Following disposition of Zarda's appeal by the three judge panel, a judge of the Court requested a poll be taken on whether to rehear the case en banc. A poll was conducted and a majority of the active judges of the court voted in favor of rehearing Zarda's appeal en banc and it was so ordered.

However, rehearing Zarda's appeal en banc may present additional arguments for the Appellate Division to consider.

It has been reported that the U.S. Department of Justice will file an amicus brief contending that Title VII does not include protection against discrimination based on sexual orientation while it has been also reported that the Equal Employment Opportunity Commission will file an amicusbrief arguing that Title VII does prohibit discrimination based on the sexual orientation of the individual.  

* The decision in Simonton v Runyon  is posted on the Internet at: http://caselaw.findlaw.com/us-2nd-circuit/1203810.html

** A case heard by all the judges of a court rather than by a panel of judges selected from the entire court is said to heard en banc

*** This decision of the three-judge panel is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/02005163-716c-4bb0-b79e-98cea4c57069/1/doc/15-3775_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/02005163-716c-4bb0-b79e-98cea4c57069/1/hilite/

School districts and other public employers in New York State may be considering providing paid family leave pursuant to the State's Paid Family Leave Act

School districts and other public employers in New York State may be considering providing paid family leave pursuant to the State's Paid Family Leave Act

Source: Shannon K. Buffum, Esq. writing for Harris Beach, PLLC's New York Municipalities Blog

Most private employers in New York State will be required to provide benefits under the New York Paid Family Leave Act [PFLA] effective January 1, 2018. In contrast, a public employer, including a school district, is not mandated to provide PFLA benefits but may to do so if it wishes. 

Ms. Buffum notes that "In the event a public employer currently provides disability benefits, but decides to not offer paid family leave benefits,  the public employer must notify its employees and the Workers’ Compensation Board of this decision no later than December 1, 2017."

However, in her PFLA article, posted on the Internet at: https://www.harrisbeach.com/new-york-municipalities-blog/caution-warranted-school-districts-considering-paid-family-leave/, Ms. Buffum also notes that some school districts in the state may be considering providing benefits for their officers and employees under the PFLA.

Workers' Compensation Board regulations implementing the Act, 12 NYCRR 355, et. seq.*, are posted on the Internet at http://www.wcb.ny.gov/PFL/pfl-regs.jsp.

It should be remembered that a public employer's unilaterally providing or withdrawing a benefit that constitutes a negotiable term or condition of employment may have committed an improper practice within the meaning of the Taylor Law [Civil Service Law Article 14].

* The Statutory Authority for promulgating 12 NYCRR 355, et. seq., is cited as Workers' Compensation Law §§117, 205, 221 and 206.

Termination of "over-65" retired former county employees reemployed on a part-time basis did not violate the Age Discrimination in Employment Act

Termination of "over-65" retired former county employees reemployed on a part-time basis did not violate the Age Discrimination in Employment Act

Carson v Lake County, Indiana, USCA, 7th Circuit, No. 16-3665

Source: Article by Kathleen Kapusta, J.D. posted in Employment Law News from WK WorkDay

Age was a necessary but insufficient factor in a county’s decision to terminate part-time rehired retirees who were 65 years old or older, the Seventh Circuit stated, finding no evidence the county employer engaged in unlawful discrimination. Affirming summary judgment against their ADEA claims, the appeals court explained that a combination of current employment and participation in a supplemental insurance program was the decisive factor that distinguished the population of terminated employees from the larger workforce. Summary judgment was also affirmed against their equal protection claim (Carson v. Lake County, Indiana, July 26, 2017, Hamilton, D.).

The plaintiffs, retirees who had been rehired part time, received a Medicare supplemental health insurance policy through Aetna that was paid for by the county. In 2013, Aetna informed the county that current employees, including rehired retirees, could not participate in the supplemental insurance plan without the county risking either forfeiting its supplemental insurance coverage altogether or incurring substantial costs to bring the plan into compliance with federal rules and regulations governing group health insurance.

The criteria. After consulting with an employee benefits attorney who confirmed Aetna’s position and advised the county “not to rehire any retirees,” or, alternatively, to rehire them full-time and offer them regular benefits, the county, in 2013, terminated 28 part-time rehired retirees. In its letter to the retirees, the county explained that they were selected for termination because they met each of four criteria: (1) they had retired from county service and were later rehired part-time; (2) they were age 65 or older; (3) they were receiving Medicare as their primary insurance; and (4) they were enrolled in the Aetna supplement. A much larger group of employees age 65 or older who were not enrolled in the supplement continued their employment with the county.

Plaintiffs, a subset of the 28 part-time employees who were terminated, sued the county for age discrimination in violation of the ADEA and the Fourteenth Amendment Equal Protection Clause. The parties filed cross-motions for summary judgment and the district court granted the county’s motion.

Not facially discriminatory. Arguing on appeal that the county’s decision was discriminatory on its face, the plaintiffs asserted that since all part-time employees who were terminated were age 65 or older, and since age was one of the criteria listed in the termination letter, “age was a but-for cause, as their age was a necessary condition for the defendant’s decision to terminate them.” The problem with this argument, said the court, was that age was not the impetus for the decision.

Noting that the plaintiffs shared four characteristics—they were (1) age 65 or older, (2) enrolled in Medicare for their primary health insurance coverage, but also were (3) rehired retirees, and (4) most important, enrolled in the Aetna supplemental policy—the court explained that the county did not terminate them because of their ages. Rather, it terminated them because they were enrolled in a retiree-only insurance plan in which current employees could not participate.

Not a proxy. The plaintiffs also argued that Medicare eligibility, and presumably enrollment in a Medicare supplement, may function as a proxy for age, such that an employer’s decision to terminate an employee based on such insurance coverage is a form of implicit age discrimination. The court, however, found no evidence that the county engaged in any prohibited stereotyping. The county did not “suppose a correlation” between the plaintiffs’ Medicare status and age and “act accordingly,” the court observed, pointing out that instead it fired only those employees who were enrolled in the Aetna supplement, leaving unaffected a large number of employees age 65 or older who had not enrolled in the supplement. The undisputed facts, said the court, showed that economic and regulatory pressures—not generalizations about the capabilities of elderly employees—drove the county’s decision.

Government policy. Moreover, the court noted, even a government policy that affects different age groups differently may not necessarily discriminate because of age. Explaining that the question is fact sensitive, the court found that here there was “no evidence of stereotypical assumptions, the likes of which Congress sought to suppress through the ADEA.” Rather, the county asserted a clear non-age-related rationale for its policy: an effort to reserve affordable health insurance for retirees. And while the county could have explained its predicament to the small group of affected part-timers and then offered each a choice between continued insurance or continued employment, that did not change the “bottom-line result in this ADEA case,” said the court, noting that the county “could not fire its employees because of their age, but we see no evidence of such disparate treatment in the record.”

Burden-shifting framework. The court also rejected the plaintiffs’ contention that they could prove their disparate treatment claim through the McDonnell Douglas burden-shifting frame-work, finding that they could not even establish a prima facie case as they could not show they were treated less favorably than similarly situated employees outside their protected class. Noting that they were among the small group of rehired retirees who were employed part-time and insured under Medicare and the Aetna supplement, the court pointed out that all such employees were fired, all (regardless of age) who remain employed by the county are not enrolled in the Aetna supplement, and all retirees who benefit from the supplement are no longer employed by the county.

Disparate impact. As to their disparate impact claim, in which they alleged they were the victims of an impermissibly discriminatory policy, the court pointed out that the undisputed facts showed the county took an adverse action against a subset of older workers not because of their age but because it wished to preserve its supplemental insurance plan and to comply with federal law. Those reasonable factors other than age amply supported the county’s decision.

Equal protection. Finally, the court found that the plaintiffs’ equal protection argument failed for essentially the same reason that their McDonnell Douglas burden-shifting argument failed: They did not identify a suitable comparator group. Observing further that the Equal Protection Clause subjects age-based distinctions to rational-basis review, the court pointed out that the county chose to terminate a group of at-will part-time employees whose continued employment would have imperiled its fragile financial situation or jeopardized an insurance plan that benefited plaintiffs and many other retirees. Noting that the county’s choice preserved plaintiffs’ eligibility for the supplemental insurance, the court found that the choice was rational.

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