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 during the week ending September, 22, 2017

Click on text highlighted in color to access the full report 

Kraft retirees had no vested right to health care benefits beyond termination of CBAs

Posted: 21 Sep 2017 12:09 PM PDT

By Ron Miller

In a number of recent court decisions, it has consistently been determined that collective bargaining agreements do not provide a source for lifetime medical benefits for retirees and their surviving spouses and beneficiaries if there is not explicit contractual language stating that such benefits survive expiration of the agreement. However, in a recent decision, Gruss v. Kraft Heinz Foods Co., Inc., Kraft retirees sought to establish that the company violated ERISA when it terminated retiree health care benefits for former hourly workers.

Changing job criteria in middle of hiring process supports pretext inference in nonselection claim

Posted: 21 Sep 2017 06:36 AM PDT

By Kathleen Kapusta, J.D.

Evidence that an employer changed the criteria for a position midway through the hiring process, relied on subjective justifications for selecting white candidates over an African-American applicant, and provided a shifting explanation for the selection decision supported an inference of pretext sufficient to deny summary judgment against the applicant’s Title VII race discrimination claim, a federal court in the District of Columbia ruled. His retaliation claim, which was based on an anonymous complaint he made four years earlier about what he viewed as a racist video, failed however (Casselle v. Chao, September 15, 2017, Boasberg, J.).

Abusive treatment of subordinates, not employee’s PTSD, was cause of firing

Posted: 20 Sep 2017 07:03 AM PDT

By Kathleen Kapusta, J.D.

An employee fired shortly after telling his supervisor he had PTSD could not establish pretext for disability discrimination by pointing to, among other things, his recent positive performance evaluations or a relatively minor misstatement in the employer’s EEOC position statement. Nor did the fact that the decisionmakers questioned the veracity of his PTSD claim show that the stated reason for discharging him—creating a hostile and intimidating work environment for his subordinates—was pretextual, the Seventh Circuit ruled, affirming summary judgment against his ADA and Rehab Act claims (Monroe v. Indiana Department of Transportation, September 18, 2017, Williams, A.).

5-minute pre-shift ‘briefing’ of 911 dispatcher compensable, not de minimis

Posted: 20 Sep 2017 06:58 AM PDT

By Joy P. Waltemath, J.D.

Reversing summary judgment to a county employer on only one of several FLSA claims for unpaid pre- and post-shift work, the Tenth Circuit found that a 911 dispatcher presented sufficient evidence for a jury to find that the county had to compensate her for the undisputedly integral and indispensable activity of being briefed by the outgoing dispatcher, which according to written policy, she was required to be at work five minutes before her shift began to receive. In an unpublished two-judge decision (now-Justice Neil Gorsuch had been on the panel for oral argument, but the remaining two panel judges were in agreement and so could act as a quorum to resolve the appeal), the court found this pre-shift activity was both ascertainable—five minutes per shift, per policy—and a “fixed or regular working time,” and a “practically ascertainable period of time [s]he is regularly required to spend on duties” so that it could not be disregarded as de minimis (Jimenez v. Board of County Commissioners of Hidalgo County, September14, 2017, per curiam).

City manager fired while she was on leave—behind her back—not because she was on leave

Posted: 19 Sep 2017 07:11 AM PDT

By Joy P. Waltemath, J.D.

Even assuming that a city manager had notified the city council that she was going on FMLA leave when she told them she was having foot surgery and would be able to work from home while recovering, her employer could fire her without unlawfully interfering with the FMLA as long as the reason for her termination was not because she was on leave. This it did, said the Sixth Circuit in affirming summary judgment for the city, because the employer demonstrated a legitimate reason for terminating her—it cited her role in “causing political strife in the community.” Moreover, it was questionable that she had provided FMLA notice since there was evidence she refused to take and complete the city’s FMLA forms, and it was suggested that she was only going to take a few days off and work from home. She also had no evidence of pretext (Mullendore v. City of Belding, released August 23, 2017, redesignated as published September 15, 2017, Batchelder, A.).

A public employee's misconduct while "off-duty" may result in disciplinary action being initiated against the employee by his or her appointing authority

A public employee's misconduct while "off-duty" may result in disciplinary action being initiated against the employee by his or her appointing authority 
Office of Administrative Trials and Hearings [OATH], Index No.1229/17

An appointing authority may bring disciplinary charges pursuant to §75 of the Civil Service Law for alleged off-duty misconduct or its statutory or contractual equivalent "where there is a sufficient nexus between the misconduct and the employing agency."* 

In this disciplinary action, OATH Administrative Law Judge Ingrid M. Addison found:

1. The employee, a peace officer, attempted to have forcible sexual intercourse, a criminal act inherently contrary to the law enforcement responsibilities of peace officers, and had pled guilty to Assault in the Third Degree, a Class A misdemeanor.

2. The appointing authority established a nexus between the employee’s off-duty misconduct and his job as "a law enforcement officer whose criminal conviction runs contra to his [or her] law enforcement duties. "

3. The disciplinary charges filed against the employee by the appointing authority were  appropriate for his proven off-duty misconduct.

Judge Addison said that "this tribunal has generally applied the principles of progressive discipline, which aims to achieve employee behavior modification through increasing penalties for repeated or similar misconduct."

Noting that the employee had not previously been served with disciplinary charges, the ALJ explained that even absent a history of prior discipline, peace officers who engage in violent off-duty misconduct with or without a resulting criminal conviction may be terminated. In addition Judge Addison observed that "for off-duty misconduct, we have imposed penalties which have been commensurate with the level of misconduct and have included termination."

Accordingly, Judge Addison recommended that the employee be terminated from his employment having been found guilty of off-duty misconduct in attempting to engage in forcible sexual intercourse with his former girlfriend and causing her physical injury while doing so.***

* See, for example, Zazycki v City of Albany, 94 A.D.2d 925, Motion for leave to appeal denied, 60 N.Y.2d 558 

** The employee was sentenced to a one-year conditional discharge, and a five-year Order of Protection was issued against him. 

*** The appointing authority adopted the recommendation of the ALJ and terminated the employee from his position and the appointing authority's determination is appended to the text of the ALJ's findings and recommendation.

The decision is posted on the Internet at: 
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1229.pdf

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A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/7401.html

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Procedures to be followed by school boards seeking to contract for expert consultant services

Procedures to be followed by school boards seeking to contract for expert consultant services

Decisions of the Commissioner of Education, Decision No. 17,188

Among the several issues certain residents and taxpayers of the district [Applicants] raised in an appeal to the Commissioner of Education were challenges to the board’s adoption of a resolution provided for contracting with a consultant, Barbara J. Smith, on the recommendation of the district’s audit committee to serve as its external auditor to assist the district in coming into compliance with applicable State requirements by implementing proper budgetary development and monitoring procedures.* 

The Applicants contended that:

[1] The audit committee violated Education Law §2116-c by recommending the hiring of a consultant;

[2] Certain members of the school board had acted in violation of Education Law §1613 in soliciting and engaging a consultant without seeking competitive bids;

[3] The vote of certain board members approving a resolution to “suspend the District policy that requires the Superintendent’s recommendation for the [school board] to hire a consultant” justifies their removal from office and

[4] The school board's hiring of the consultant encroached upon the exclusive authority of the superintendent, in violation of Education Law §1711.

Addressing the contract issue raised in this appeal concerning the board's not seeking "competitive bid" for the consulting services required, the Commissioner observed that the board sought to obtain the professional skills and knowledge of a consultant**to provide training, assistance, and mentoring to the district’s business official relating to the budget development, fiscal monitoring, and reporting. 

As the contract to retain the consultant to provided such types of professional services, the Commissioner said that it was not subject to "the sealed competitive bidding requirements of General Municipal Law §103." Consequently, the Commissioner explained, entering into a contract for professional services without competitive bidding does not violate Education Law §1619. As "professional services contracts" are outside the scope of competitive bidding, the Commissioner said that they "need not be awarded to the lowest bidder provided that the award is in the best interest of the taxpayers."

The Commissioner noted that General Municipal Law §104-b requires a board to adopt policies and procedures to govern the procurement of goods and services not subject to competitive bidding and further such procedures must contain, among other things, a requirement that proposals “be secured by use of written requests for proposals, written quotations, verbal quotations, or any other method of procurement which furthers the purposes of the section.” In this instance Board Policy 6741 set out the process for securing professional services, including the preparation of a request for proposals [REP].

Turning to the Applicants' complaint that certain board members had violated Policy 6741 as the basis for their removal from office, the Commissioner said that "it is well settled that, even if proven, violation of a board’s bylaws or policies, by itself, is not a sufficient basis for removal of a member of a board of education in a proceeding pursuant to Education Law §306."

In contrast, the Commissioner noted that "a violation of board policy may be used as evidence of willfulness of such conduct" and school district officers can only be removed under §306 when they engage in a "willful violation or neglect of duty," i.e.,"a purpose or intent to disregard a lawful duty or to violate a legal requirement" while "[m]ere negligence on the part of a school officer is not enough to warrant removal."

In this instance the Commissioner found that the acts about which Applicants complain "do not rise to the level of willful misconduct and, thus, on the record before me, [Applicants] have failed to demonstrate that [the board members named by Applicants] engaged in a willful violation or neglect of duty.” 

While noting that the board may not have processed the employment of the Consultant as may have been otherwise required by its policies, the Commissioner found that the process followed by the board in this regard "substantially furthered the purpose of General Municipal Law §104-b."

Finally, the Commissioner concluded that no evidence in the record supported a finding that the board members Applicants sought to have removed from office willfully violated the law or neglected their duty, the standard that must be met for removing a board member from office.

The Commissioner concluded her decision with the following statement: "Although I am constrained to deny this application for removal and dismiss this appeal, I admonish respondent board to fully comply with the procedures established in all applicable board policies in the future."

* Applicants had sought "interim relief ... to restrain the board from enforcing the resolution passed by the board to hire the Consultant, which request was denied by the Commissioner.

** The consultant selected by the board was a former audit manager with an accounting firm and former Chief Financial and Operating Officer for the City School District of the City of Buffalo,

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17188