An agreement to submit a dispute to arbitration will be enforced by the court

An agreement to submit a dispute to arbitration will be enforced by the court

Adams v Metropolitan Transp. Auth., 2017 NY Slip Op 05946, Appellate Division, Second Department

As a general rule, arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he or she has not agreed so to submit. Further, a party may not be compelled to arbitrate a dispute unless there is evidence affirmatively establishing that the parties clearly, explicitly, and unequivocally agreed to arbitrate.

In a proceeding pursuant to CPLR Article 75 to compel arbitration Supreme Court granted the petition directed the parties to proceed to arbitration. The Appellate Division affirmed the lower court's ruling.

As to the genesis of this Article 75 action, since 1973, Nassau County provided bus service for the County through an operating agreement with a subsidiary of the Metropolitan Transportation Authority [MTA], the MTA-Long Island Bus [MTA-LIB]. The operating agreement set out various protections that were set forth in various agreements, known §13(c) agreements, which included arbitration provisions.

In 2011, MTA discontinued its bus service in the County and the County contracted with Veolia Transportation Services, Inc. [Veolia] to provide bus services. Veolia agreed that the §13(c) agreements that had been entered into by the County would continue. These agreements provided for arbitration of claims by the employees of the bus service.

Certain employees of the MTA-LIB were terminated and subsequently hired by Veolia. These employees, contending that as a result of moving their employment to Veolia they encountered "negative employment consequences" that were compensable under the §13(c) agreements, demanded that their complaints be submitted to arbitration.

The Appellate Division said that Supreme Court had correctly determined that MTA, MTA-LIB, the County and Veolia "had all clearly and expressly agreed to arbitrate the claims alleged by the former MTA-LIB employees pursuant to the §13(c) agreements and that any conditions precedent to seeking arbitration had been satisfied."

Accordingly, the Appellate Division found that the lower court had properly granted the former MTA-LIB employee's petition to compel arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05946.htm

A notice of termination may constitute an adverse employment action within the meaning of Title VII and the Family Medical Leave Act

A notice of termination may constitute an adverse employment action within the meaning of Title VII and the Family Medical Leave Act

United States Court of Appeals, 2nd Circuit, Docket #16-3140

The Second Circuit US Court of Appeals ruled that "a notice of termination itself constitutes an adverse employment action, even when the employer later rescinds the termination."

Citing two decisions by the Supreme Court, Delaware State College v Ricks, 449 U.S. 25 and Chardon v Fernandez, 454 U.S. 6, the Second Circuit held that plaintiff's notice of termination in this case may, itself, constitute an adverse employment action notwithstanding its revocation before it became effective for the purpose of litigating an alleged unlawful discrimination or other claim.

Although in this action the court found that the rescission of a notice of termination given to an employee may not constitute an adverse employment action and other facts alleged in the complaint "were insufficient to establish constructive discharge nor a hostile work environment," the court found that the plaintiff did state a plausible claim of "discriminatory termination and interference with her FMLA rights."

The Circuit Court remanded the matter to the district court for the purpose of the lower court reconsidering " ... its decision to decline to exercise supplemental jurisdiction over the [plaintiff's] state and city law [unlawful discrimination] claims."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/e303b236-2fce-492b-9315-69b43828ec4b/1/doc/16-3140_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e303b236-2fce-492b-9315-69b43828ec4b/1/hilite/

Employment Law News from WK WorkDay

Employment Law News from WK WorkDay 

Source: Wolters Kulwer

Selected reports posted by WK Workday distributed August 11, 2017

Click on text highlighted in color  to access the full report 

Grievance reveals possible Hatch Act violations

Despite his racist comments toward replacement workers, firing picketer violated NRLA

Head Start grant recipient must repay $1.3M used for employee bonuses

Employer can’t avoid $305K in penalties for Form I-9 and other INA violations

Waffle House’s arbitration agreement included valid delegation clause supporting motion to compel

 

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending August 12, 2017

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending August 12, 2017

Click on text highlighted in color  to access the full report

New York State Comptroller Thomas P. DiNapoli announced the following items have been issued:

Comptroller DiNapoli and A.G. Schneiderman Announce 2 to 6 Year Prison Sentence for Former Councilman Ruben Wills in Public Corruption Scheme

State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the sentencing of former New York City Councilman Ruben Wills to 2 to 6 years in prison; Wills was also ordered to pay nearly $33,000 in restitution and a $5,000 fine.

Former Town of Minerva Clerk Pleads Guilty

Jordan Green, the former clerk to the supervisor for the town of Minerva, pleaded guilty to fourth degree grand larceny, official misconduct and tampering with public records, after an investigation and audit found she stole thousands of dollars from the town.

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

__________________________

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