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

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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

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

Leaving employment without good cause disqualifies a claimant for unemployment insurance benefits

Leaving employment without good cause disqualifies a claimant for unemployment insurance benefits

Matter of Walters (Commissioner of Labor), 2017 NY Slip Op 05497, Appellate Division, Third Department

The Unemployment Insurance Appeal Board [Board] found that an applicant for unemployment insurance benefits [Claimant] was ineligible for such benefits because she had "voluntarily left her employment without good cause."

Claimant appealed but the Appellate Division sustained the Board's ruling finding that its decision was supported by substantial evidence. Claimant had advanced three arguments in pressing her claim for benefits.

Claimant first contended that on her last day of employment she would be late reporting for duty because of a "doctor's appointment" and, after she learned that her supervisor had to cover for her, she quit because she was afraid she was going to be reprimanded or terminated.

Citing Welsh [Commissioner of Labor], 138 AD3d 1328, the Appellate Division noted that "resignation in anticipation of being discharged does not constitute good cause for leaving one's employment."

Claimant had also testified that she also quit her job "because the employer made it difficult for her to schedule medical appointments when the employer was short-staffed."

However Claimant admitted that she was never informed that her job was in jeopardy due to being absent from or late to work.

The Appellate Division, citing McCarthy [Commissioner of Labor], 120 AD3d 876, explained that dissatisfaction with one's work schedule "... does not constitute good cause for leaving one's employment."

As to Claimant's final justification for quitting her job, she testified she had quit "due to stress involving a coworker." Claimant admitted, however, that her supervisor had taken certain actions as a result of her report and had changed her schedule so she did not have to work with the individual in question.

The Appellate Division said that it its view, the Board's decision that Claimant left her employment for personal and non-compelling reasons, was supported by substantial evidence and declined to disturbed it.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05497.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending July 22, 2017

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending July 22, 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:

OCFS Should Improve Foster Care Placement Oversight

The state Office of Children and Family Services (OCFS) could not show that caseworkers contacted children in foster care within the first 30 days of their placement and lacked documentation proving children were placed in foster homes that met program certifications, according to an auditby New York State Comptroller Thomas P. DiNapoli.

Town of Geneseo – Information Technology and Multiyear Planning (Livingston County)
The board has not adopted policies to sufficiently protect the town's information technology assets and did not ensure that the adopted acceptable use policy was enforced or monitored. Town officials did not adequately segregate online banking duties and did not dedicate a separate computer for online transactions to limit access to online bank accounts. In addition, auditors found the town accumulated excessive fund balance in various funds.

Monticello Joint Fire District – Fiscal Operations (Sullivan County)
The board did not adopt realistic budgets for the 2014 through 2016 fiscal years. Although total budgeted revenues were reasonable, total expenditures were overestimated an average of 20 percent or almost $391,000 annually. The treasurer performs all financial transactions without adequate oversight.

Town of Orchard Park – Recreation Department Cash Receipts (Erie County)
The board did not adopt written policies over financial operations or approve a key department contract. The department generally recorded and deposited cash receipts properly, but did not remit money to the supervisor in a timely manner.

Judicial review of a determination arrived at following a quasi-judicial hearing is typically limited to determining if the decision is supported by substantial evidence

Judicial review of a determination arrived at following a quasi-judicial hearing is typically limited to determining if the decision is supported by substantial evidence

2017 NY Slip Op 05608, Appellate Division, Second Department

In this decision the Appellate Division sets out the basic rules followed by the courts when reviewing an administrative determination arrived at following a quasi-judicial hearing by an appointing authority or its designee. In this instance the appointing authority adopted the report and recommendation of a hearing officer, made after a hearing pursuant to Civil Service Law §75 finding the charged party [Petitioner] guilty of certain disciplinary charges, and terminated the Petitioner's employment.

Confirming the appointing authority's determination is confirmed, the Appellate Division explained:

1. The standard of review of an administrative determination made after a quasi-judicial hearing required by law is limited to considering whether the determination was based on substantial evidence.

2. It is the function of the administrative agency, not the reviewing court, to weigh the evidence, assess the credibility of witnesses, and determine which testimony to accept and which to reject.

3. Where evidence is conflicting and room for choice exists, a reviewing court may not weigh the evidence or reject the choice made by the administrative agency.

Here, said the court, substantial evidence supported the appointing authority's determination that Petitioner was guilty of committing certain acts of misconduct or insubordination.

As to the penalty imposed, dismissal from the position, the Appellate Division, citing Kreisler v New York City Tr. Auth., 2 NY3d 775, concluded that "the penalty of termination of [Petitioner's] employment was not so disproportionate to the offenses as to be shocking to one's sense of fairness."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05608.htm

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Municipalities and school districts rely on federal aid

Municipalities and school districts rely on federal aid

Source: Harris Beach PLLC, New York Municipalities Blog

A new report released by New York State Comptroller Thomas DiNapoli shows how much municipalities and school districts rely on federal aid. 

The report covers statistics from 2015 and shows that local governments and school districts outside New York City received $4.7 billion in direct federal support.

Click Here to Read Full Post

Considering breaks in service in determining seniority for the purposes of layoff and reinstatement

Considering breaks in service in determining seniority for the purposes of layoff and reinstatement

2017 NY Slip Op 05657, Appellate Division, Third Department

Appeal from a judgment of the Supreme Court Ulster County granting petitioner's [Petitioner] application in a proceeding pursuant to CPLR Article 78 seeking to annul a determination of the Board of Education denying Petitioner's request for certain seniority rights.

The Petitioner in action was elementary teacher and had attained tenure with the school district [the District]. In 2004 Petitioner took an unpaid leave of absence and in December 2005 resigned from her position when her eligibility for continuation on unpaid leave expired rather than return to work. In 2007 the District appointed Petitioner to a teaching position and she was subsequently granted tenure by the District upon her satisfactory completion of her probationary period associated with this new appointment in 2009.

In 2010 the District eliminated positions in the elementary tenure area and Petitioner seniority for the purposes Education Law §2510 was based on her service with the District running from 2007. §2510 provides, in pertinent part, "Whenever a board of education abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued."

A temporary kindergarten teaching position then became available for the 2011-2012 school year. However, another former teacher was recalled to fill the vacancy because of her greater seniority. Petitioner, contending that the District had improperly calculated her seniority by ignoring her earlier service with the District and it should have reinstated her to the vacancy. Petitioner initiated the Article 78 action seeking a court order annulling the District's decision and ultimately Supreme Court directed the District to recalculate Petitioner's "seniority rights and all salary due to her."

The District appealed the Supreme Court's decision, contending that Petitioner's resignation from her position in 2005 served to sever her ties with the District and thus she forfeited any claim with respect to her earlier service with the District for the purposes of determining her  seniority rights.

The Appellate Division, citing Kwasnik v King, 123 AD3d 1264, explained that "Although an employee may waive his or her seniority rights by resigning or retiring, such a relinquishment must be knowing and voluntary" and be an effective waiver of such rights, the waiver "must be free from any indicia of duress or coercion."

In Petitioner's case the Appellate Division concluded that she resign from her position in 2005 rather than return from her leave when the District informed her that such extension was not possible as she had "exhausted her unpaid leave time." In other words, it was Petitioner decision to resign rather than return to work.

Thus, said the court, there was nothing in the record that could be construed as duress or coercion on the part of the District to obtain her resignation and the record indicated that Petitioner voluntarily resigned for her tenured position "in response to being accurately informed that she had exhausted her [rights to additional unpaid] leave.”

The Appellate Division also noted that Petitioner had been subsequently appointed by the District as a probationary employee after a year and half break in service, thus "belying any claim that she maintained a continuing employment relationship with it."

Accordingly, said the court, the District had properly determined that Petitioner was not entitled to count the period of time she had been employed by it prior to her 2005 resignation "for the purpose of [§2510] seniority" and, reversing the Supreme Court's decision, reinstated the District's initial determination regarding Petitioner seniority for the purposes of her reinstatement from the preferred list.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05657.htm

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The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

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New York State regulations for Paid Family Leave Program adopted

New YorkState regulations for Paid Family Leave Program adopted

Source: NYS Workers Compensation Board

On July 19, 2017, Governor Andrew M. Cuomo announced that New York State has adopted regulations implementing New York's landmark Paid Family Leave program. These regulations outline the responsibilities of employers and insurance carriers in implementing the most comprehensive paid family leave program in the nation. 

Starting January 1, 2018, Paid Family Leave will provide employees with wage replacement and job protection to help them bond with a child, care for a close relative with a serious health condition, or help relieve family pressures when someone is deployed abroad on active military service. Employees are also entitled to be reinstated to their job when their leave ends and to the continuation of their health insurance during their leave. 

Paid Family Leave provides coverage for:

• Parents during the first 12 months following the birth, adoption, or fostering of a child;

• Employees caring for a spouse, domestic partner, child, parent, parent-in-law, grandparent, or grandchild with a serious health condition; and

• Employees assisting loved ones when a spouse, child, domestic partner, or parent is deployed abroad on active military duty.

Employee Eligibility:

• Employees with a regular work schedule of 20 or more hours per week are eligible after 26 weeks of employment.

• Employees with a regular work schedule of less than 20 hours per week are eligible after 175 days worked.

Insurance Coverage

Paid Family Leave coverage will typically be included as a rider to an employer's existing disability insurance policy, and will be fully funded by employees through payroll deductions. In 2018, the maximum employee contribution is 0.126% of an employee's weekly wage up to 0.126% of the annualized New York State Average Weekly Wage. The program is mandatory for nearly all private employers. Public employers may opt into the program.

Phase-in Schedule

Paid Family Leave will be phased in over four years, beginning January 1, 2018. In 2018, employees may take up to eight weeks of paid leave at 50% of an employee's average weekly wage up to 50% of the New York State Average Weekly Wage. That increases to 12 weeks of paid leave in 2021 paid at 67% of an employee's average weekly wage up to 67% of the New York State Average Weekly Wage.

The regulations and other information is posted on the Internet at:

http://www.wcb.ny.gov/PFL/pfl-regs.jsp