Filing disciplinary charges against an employee where the absence is due to an injury or disease

Filing disciplinary charges against an employee where the absence is due to an injury or disease

OATH Index No. 648/17

An appointing authority may serve an employee of the State* as the employer  with disciplinary charges alleging he or she is guilty of "excessive absence." It is typically inappropriate to do so, however, when the employee is eligible for Workers' Compensation Leave pursuant to §71 of the Civil Service Law or Leave for Ordinary Disability pursuant to §72 of the Civil Service Law.

Civil Service Law §71 provides for leaves of absence in the event an employee’s injury or disease is “work connected” and is typically referred to as “workers’ compensation leave. §72 of the Civil Service Law provides for leaves in situations where the employee’s injury or disease is not job related and is usually designated “leave for ordinary disability.” §73 of the Civil Service Law provides for the termination of an employee absent on §72 leave while termination of leave in §71 situations is authorized by §71 itself.**

Significantly neither termination pursuant to §71 nor §73 is pejorative in nature and the individual is eligible for reinstatement to his or her former position, or a similar position, upon timely application once the underlying cause of his or her absence abates.

a. Workers’ Compensation Leave, §71 of the Civil Service Law, “stands alone” with respect to placement on such leave and termination from, and subsequent reinstatement following such termination from §71;

b. Civil Service Law §72, Leave for Ordinary Disability, provides for such leave and reinstatement from such leave while §73 of the Civil Service Law provides for termination from a §72 leave and subsequent reinstatement after such termination; and

c. Termination from §71 or §72 leave once the minimum periods of such leaves are satisfied is at the discretion of the appointing authority.

It should be noted that although the employee must be absent on leave pursuant to §72 continuously for period of one year to trigger the appointing authority’s ability to elect to terminate the individual pursuant to §73, the appointing authority may, as an exercise of discretion, terminate an employee absent on §71 Worker’s Compensation Leave after he or she has been absent on such leave due to the same injury or disease for an “accumulative period” of one year or longer.

Further, where an employee is placed on §71 Workers’ Compensation Leave because of a disability resulting from an assault sustained in the course of his or her employment, he or she is entitled to a leave of absence for an “accumulative period” of at least two years.

In any event, neither §71 nor §72 requires the termination of the employee after he or she has been absent for the requisite minimum period of such a leave. Such termination effected as the result of an appointing authority's exercising a right of discretion to do so.

This issue was recently addressed by New York City Office of Administrative Tribunals and Hearings [OATH] Administrative Law Judge Kara J. Miller as the result of a New York City construction worker being charged with incompetence pursuant to §75 of the Civil Service Law due to "excessive absence."

The record, however, established that the employee's absence was due to an occupational injury which resulted in his being "out on worker’s compensation" for more than one year. ALJ Miller recommended that the worker be separated from employment pursuant to Civil Service Law §71 because his extended absence resulted exclusively from an occupational injury.

Indeed, in Gooshaw v Village of Massena, 216 AD2d 819, the Appellate Division said that it is inappropriate to file disciplinary charges against an individual who is unable to report for work because of his or her conceded disability.

* Although not all employees of the State are State officers, all officers of the State are employees of the State.

** See 4 NYCRR 21.3(e) and 4 NYCRR 21.8, both of which apply to employees of the State as an employer. Many local civil service commissions and personnel officers have adopted similar rules or regulations.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-648.pdf

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Applying the doctrine of primary jurisdiction

Applying the Doctrine of Primary Jurisdiction

2017 NY Slip Op 02192, Appellate Division, Fourth Department

In 2003 the petitioner-plaintiff [Petitioner] was notified by her employer,  Erie 2-Chautauqua-Cattaraugus Board of Cooperative Educational Services [BOCES], that her position as a tenured teacher of gifted and talented elementary school students had been abolished. Petitioner's name was then placed on a preferred eligible list for reappointment to the same or a similar position in accordance with Education Law §3013(3)(a).

Petitioner subsequently learned that BOCES had created a teacher position in a universal prekindergarten [UPK] program in one of the BOCES' component school districts. Despite declining offers of that position in December 2007 and June 2008, Petitioner brought this "hybrid plenary action and CPLR Article 78 proceeding"

In her petition-complaint, Petitioner advanced various theories alledging that BOCES violated her "recall from the preferred list" rights under the Education Law and sought "reappointment to the UPK teacher position, with back pay and benefits and restored pension credit, retroactive to 2005," at which time BOCES had allegedly established the UPK position. Supreme Court, after granting Petitioner's motions to reargue, dismissed her petition in its entirety based on the Doctrine of Primary Jurisdiction.* The court had concluded that the issue of whether the former and new positions are similar for the purposes of §3013(3)(a) is for the Commissioner of Education to resolve in the first instance. Petitioner appealed Supreme Court's decision to the Appellate Division.

The Appellate Division sustained the lower court's rulings with respect to Petitioner's motions to reargue, which had been granted, holding that Supreme Court, in the person of the newly assigned Individual Assignment System (IAS) Judge, properly entertained and granted Petitioner's motion for leave to reargue. The Appellate Division then said the Supreme Court, after granting Petitioner motions to reargue, properly dismissed her petition relying on the Doctrine of Primary Jurisdiction.

The Appellate Division explained that in this instance the Commissioner of Education "has the specialized knowledge and expertise" to resolve the factual issue of whether Petitioner's former position with BOCES  as a teacher of gifted and talented elementary school students and the new UPK teacher position are similar within the meaning of §3013(3)(a) of the Education Law.

Citing Hessney v Board of Education of Public Schools of Tarrytowns, 228 AD2d 954, the Appellate Division held that Supreme Court properly dismissed Petitioner's action as she had failed to timely appeal the matter to the Commissioner of Education.

* Applying the Doctrine of Primary Jurisdiction permits a court to refer an issue to an administrative agency for its determination when the issue is within the agency's purview and expertise. Should a party challenge the administrative determination, the administrative agency's decision may be, if timely appealed, addressed by the court.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02192.htm

Selected reports posted in Employment Law News by WK Workday

Selected reports posted in Employment Law News by WK Workday

Source: Wolters Kulwer

Selected reports posted by WK Workday August 29, 2017

Click on text highlighted in color  to access the full report

Firing due solely to wife’s jealousy might be gender bias under NY state, city law

By Joy P. Waltemath, J.D.

Is firing an at-will employee at the urging of an employee’s spouse due to sexual jealousy sex discrimination? It could be, said a New York state appellate court, reversing the dismissal of a sex discrimination complaint under state and city law filed by the fired employee of a chiropractic and wellness clinic who alleged that she was fired by the clinic’s husband and wife co-owners after the wife texted her to “stay the [expletive] away from my husband and family!!!!!!! And remember I warned you” (Edwards v. Nicolai).

City of LA was a market participant, not a regulator, in imposing ‘labor peace agreement’ at LAX

By Ronald Miller, J.D.

As proprietor of Los Angeles International Airport (LAX), the City of Los Angeles could require businesses at the airport to accept a contractual condition imposing a “labor peace agreement” in licensing agreements for service providers, ruled a divided Ninth Circuit panel. A trade association representing service providers at LAX had standing to challenge the city’s actions, the appeals court determined. Nevertheless, because the city was acting as a market participant, and there was no indication that Congress intended to preempt actions taken by state and local governments in this capacity, the Ninth Circuit affirmed the district court’s dismissal of the complaint. Judge Tallman filed a separate opinion concurring in part and dissenting in part (Airline Service Providers Association v. Los Angeles World Airports).

Ordinance regulating solicitation by day laborers unconstitutionally restricted commercial speech

By Ronald Miller, J.D.

A federal district court correctly held that a city ordinance ostensibly designed to regulate solicitation of work by day laborers was an unconstitutional restriction of commercial speech in violation of First Amendment, ruled a divided Second Circuit in a 2-1 decision. The appeals court held that an advocacy group that counseled day laborers at “shape-up sites” within the town demonstrated a sufficient injury-in-fact to confer standing to challenge the ordinance. On the merits, it agreed with the lower court that the ordinance restricted speech based on its content and was therefore subject to the First Amendment; the ordinance failed the Central Hudson test because it is an overbroad commercial speech prohibition. Judge Jacobs filed a separate dissenting opinion (Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, [New York]).

Coach suspended for praying on football field spoke as public employee

By Lorene D. Park, J.D.

Affirming the denial of preliminary injunctive relief for a football coach seeking reinstatement and to be allowed to pray on the 50-yard line immediately after games, the Ninth Circuit held that he spoke as a public employee, not as a private citizen, when he kneeled and prayed in school logoed-attire while in view of students and parents. The panel also expressed that he used his position to press his particular views on impressionable and captive minds. Because his demonstrative speech fell within his typical job duties, he spoke as a public employee, and the district was allowed to order him not to speak in this manner, he could not show a likelihood of success on the merits of his First Amendment retaliation claim and was not entitled to a preliminary injunction (Kennedy v. Bremerton School District).

Reducing or discontinuing a NYSHIP participating employer's contributions towards a retired employee's health insurance premium

Reducing or discontinuing a NYSHIP participating employer's contributions towards a retired employee's health insurance premium

Weaver, et al, v Town of N. Castle, 2017 NY Slip Op 05960, Appellate Division, Second Department

On June 27, 2012 the Town Board of the Town of North Castle adopted a resolution establishing a "Compensation and Benefits Manual" [Manual]. The Manual provided that, effective July 1, 2012, the Town would not contribute towards the cost of health insurance benefits on behalf of current or former Board members enrolled in the Town's health insurance plan, the New York State Health Insurance Program [NYSHIP],* although such elected officials could continue their coverage in the NYSHIP by paying 100% of the total cost of the premium for their participation in NYSHIP.

Following the Town's informing the affected individuals of the increased premium rates they would be required to pay in order to continue their participation in NYSHIP, a number of such persons [Petitioners] initiated an Article 78 action challenging the Board's action, seeking a court order declaring the Board's resolution "null and void."

Supreme Court dismissed the Petitioners' complaint, affirmatively declaring that the Town Board's resolution "was not null and void," and, in effect, held that the Petitioners [1] did not have a vested contractual interest in retirement health insurance benefits, [2] that the doctrine of promissory estoppel did not bar the reduction of Town's contribution to the Petitioners' health insurance premiums and [3] the Board's resolution, "insofar as it provides that the Town of New Castle will not contribute toward retirement health insurance benefits of former members of the Town Board of the Town of New Castle who retired prior to July 1, 2012, does not violate Civil Service Law §167(2)."

The Petitioners appealed and the Appellate Division modified the Supreme Court's judgment "on the law," declaring that the resolution, insofar as it provided that the Town of New Castle "will not contribute toward retirement health insurance benefits for former members of the Town Board of the Town of New Castle who retired prior to July 1, 2012, violates Civil Service Law §167(2)."

The Appellate Division said that although Supreme Court properly determined that [1] the Board was entitled to reduce the Petitioner's retirement health insurance benefits granted by its October 13, 1983 resolution,* as "A municipal resolution is, in general, a unilateral action that is temporary in nature and, thus, does not create any vested contractual rights" and [2] the Town was not barred by the doctrine of promissory estoppel from reducing the appellants' retirement health insurance benefits,** Supreme Court erred in determining that the Town was not required to contribute any amount for the retirement health insurance benefits of former Board members who retired prior to July 1, 2012."

The court noted that Civil Service Law §167(2) provides, in relevant part, that participating employers, such as the Town, are required to contribute 50% of the cost of premiums for retired employees, and 35% of the cost of coverage for their dependents. The Appellate Division then ruled as Petitioners were individuals who has become enrolled in [NYSHIP] as an employee and whose coverage is being continued after his or her withdrawal from the active service within the meaning of 4 NYCRR 73.1[e], the Town may not reduce its contribution rates "below the legally mandated minimums set out in §167(2) of the Civil Service Law."

The matter was then remitted to Supreme Court for a determination as to damages for the amounts paid by the retired appellants "which were part of the legally mandated minimums and for the entry of an appropriate amended judgment thereafter."

* Civil Service Law §167(2), in pertinent part, provides that "Each participating employer shall be required to pay not less than fifty percentum of the cost of premium or subscription charges for the coverage of its employees and retired employees who are enrolled in the statewide only or the statewide and comparable supplementary health benefit plans established pursuant to this article. Such employer shall be required to pay not less than thirty-five percentum of the cost of premium or subscription charges for the coverage of dependents of such employees and retired employees. Such employer shall contribute toward the premium or subscription charges for the coverage of each employee or retired employee who is enrolled in an optional benefit plan and for the dependents of such employee or retired employee the same dollar amount which would be paid by such employer for the premium or subscription charges for the coverage of such employee or retired employee and his or her dependents if he or she were enrolled in the statewide health benefit plan, but not in excess of the premium or subscription charges for the coverage of such employee or retired employee and his or her dependents under such optional benefit plan. Such employer shall not be required to pay the cost of premium or subscription charges for the coverage of unpaid elected officials, or unpaid board members of a public authority, or their dependents, provided, however that no unpaid board member of a public authority shall be eligible to participate in such benefit plan until he or she has served in such position for at least six months. Subject to such regulations as the president may prescribe, any participating employer may elect to pay higher rates of contribution for the coverage of employees, retired employees and their dependents ...."

** The Town's 1983 resolution proved that it would pay "either 100% or 85% of the NYSHIP premium for health insurance depending on the amount of years of service set forth in current collective bargaining agreements for retirees."

*** The Appellate Division noted that to establish promissory estoppel, a party must prove a clear and unambiguous promise, reasonable and foreseeable reliance by the party to whom the promise is made, and an injury sustained in reliance on that promise.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05960.htm

Determining an educator's seniority for the purposes of layoff

Determining an educator's seniority for the purposes of layoff

Decisions of the Commissioner of Education, Decision No. 17,140

Education Law §§2510(2) and 3013(2) provide that when a board of education abolishes a position, “the services of the teacher having the least seniority in the system within the tenure [area] of the position abolished shall be discontinued.”  Further, in determining which position within a tenure area is to be abolished "seniority credit shall be awarded for time served in a position for which the teacher did not hold proper certification, at the time, because certification is not controlling in determining seniority credit for this purpose." 

In this appeal to the Commissioner of Education the Petitioner alleged that she was improperly excessed from her position in violation of Education Law §2510 as she had spent at least 50 percent of her time teaching social studies in both the 2008-2009 and 2009-2010 school years and thus she had greater seniority than another social studies teacher and that teacher should have been excessed. Petitioner requested that the Commissioner declare the school board’s actions excessing her null and void and to direct the school board to reinstate her to her former position "with full seniority rights, benefits and pay retroactive to September 1, 2014."*

The school district, in rebuttal, contended that the earliest Petitioner could begin to accrue seniority in the tenure area of social studies was the date upon which she received certification in social studies. Accordingly, the school district argued Petitioner was the least senior teacher in the social studies tenure area and that its decision to terminate her services was proper. In so doing the school board cited the Appellate Division's decision in Abdallah v. Bd. of Educ. of Massena Cent. Schools, 61 AD2d 1096, in support of its action.

In Abdallah the court held that the petitioners in that case, nurse-teachers whose positions were abolished and replaced by registered nurse positions, "were not certified in the tenure area of the position abolished" and thus they “could not possibly have gained tenure and seniority in those tenure areas.” However, the Commissioner opined that this statement by the Appellate Division in Abdullah was not intended to overrule Matter of Lynch v. Nyquist, 41 AD2d 363, affirmed, 34 NY2d 588. In Lynch the court held that an uncertified teacher cannot be given seniority credit towards tenure and thus become tenured even though uncertified.

The Commissioner said "it is unclear" whether the school district ever affirmatively determined the authorized tenure area(s) to which Petitioner’s position should be classified or reclassified and then determined her  seniority within such tenure area(s) as it is required to do. Rather the school district, relying on Abdallha, "erroneously asserted that it could not reclassify Petitioner’s duties because she could not accrue seniority credit in the abolished position for the time period that she did not hold a proper certification." However, noted the Commissioner, the Appellate Division's ruling in Lynch indicated that a school district "may not circumvent Education Law §3020-a by excessing a tenured, certified teacher based on their lack of certification to teach in the tenure area of an abolished position" is still binding precedent.

Accordingly, the matter was remanded to the school board for its determination of Petitioner’s seniority rights with respect to [1] performing duties in the social studies tenure area, and [2] whether she is entitled to back pay and retroactive benefits from September 1, 2014 through October 13, 2014, in accordance with 8 NYCRR 30-1.1 and this decision.

It should be noted that the Education Law and the rules and regulations promulgated thereunder addressing seniority, tenure and layoff with respect to educators apply to those positions in the Unclassified Service as defined in §35(g) of the Civil Service Law.

In contrast, §80 [positions in the competitive class of the Classified Service]** of the Civil Service Law, subject to certain statutory exceptions, provide that "suspension or demotion, as the case may be, among incumbents holding the same or similar positions shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs, subject to the provisions of subdivision seven of section eighty-five of this chapter; provided, however, that the date of original appointment of any such incumbent who was transferred to such governmental jurisdiction from another governmental jurisdiction upon the transfer of functions shall be the date of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction from which such transfer was made."

Further, as the Appellate Division held in City of Plattsburgh v Local 788, 108 AD2d 1045, the statutory rights set out in §80 of the Civil Service Law may not be abrogated by the terms of a collective bargaining agreement as an individual’s seniority for the purposes of layoff may neither be diminished or nor impaired by the terms of a collective bargaining agreement.

* The record indicated that Petitioner was reinstated to her former position on October 14, 2014 and that she has continued in that position to date with full salary and benefits. Accordingly, said the Commissioner, the only issue to be addressed is "Petitioner’s request for reinstatement with back pay, interest, benefits, seniority, tenure and other emoluments of office for the period September 1, 2014 through October 13, 2014."

** See §80-a of the Civil Service Law, which provisions control with respect to positions in the non-competitive class of the Classified Service of the state as the employer in the event of a layoff of such personnel.

The decision is posted on the Internet at: 

http://www.counsel.nysed.gov/Decisions/volume57/d17140

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New York State Comptroller Thomas P. DiNapoli announced the following report was issued during the week ending August 26, 2017

 
New York State Comptroller Thomas P. DiNapoli announced the following report was issued during the week ending August 26, 2017

Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report

Comptroller DiNapoli and A.G. Schneiderman Announce Sentencing of Former West Ghent Volunteer Fire Company Treasurer Who Embezzled Funds to Bankroll Personal Business

Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the sentencing of Gail E. Cesternino, the former West Ghent Volunteer Fire Company treasurer, for embezzling fire company money to bankroll her personal business. Cesternino was sentenced to 30 days in jail followed by five years’ probation, and ordered to pay $58,000 in restitution and a $5,000 fine.