New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending September 30, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending September 30, 2017

Source: Office of the State Comptroller

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Audit Recommends Improved Oversight of Nurse Licensing by State Education Department

The State Education Department should improve its process to investigate serious complaints against nurses and more actively monitor professional misconduct, according to an auditby New York State Comptroller Thomas P. DiNapoli.

State Comptroller DiNapoli Announces Latest Fiscal Stress Scores

State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System has designated 27 municipalities across the state as fiscally stressed. The list, which includes eight counties, eight cities and 11 towns, marks the fewest number of municipalities listed in stress since DiNapoli implemented his early-warning system in 2013. 

The Erie Canal: Celebrating 200 Years of a National Landmark 

This year is the 200th anniversary of the groundbreaking of the Erie Canal. The Office of the State Comptroller played a key role in overseeing the funds for the building of the Erie Canal, which took eight years to complete initially at a cost of $7 million, an enormous undertaking at the time. Starting in 1817, the State Comptroller served on the Canal’s Board of Commissioners, which was responsible for transacting all canal business; later, the duty of auditing the Canal’s accounts was assigned to the Comptroller’s office. The Canal contributed to the rise of New York City as a global financial capital and energized the state's economy.

A court's review of an administrative decision made after an adversarial hearing is limited to considering if the decision is supported by substantial evidence

A court's review of an administrative decision made after an adversarial hearing is limited to considering if the decision is supported by substantial evidence

2017 NY Slip Op 04447, Appellate Division, Second Department

The Commissioner of the City of Mount Vernon Police Department, after a disciplinary hearing conducted pursuant to §75 of the Civil Service Law, found the employee [Petitioner] guilty of certain disciplinary charges and imposed the penalty of termination. Petitioner initiated an Article 78 action challenging the Commissioner's determination.

The Appellate Division affirmed the Commissioner's action and dismissed the proceeding "on the merits, with costs."

The court explained that "Judicial review of an administrative determination made after a hearing at which evidence is taken pursuant to direction of law is limited to a consideration of whether that determination was supported by substantial evidence upon the whole record."

Citing Berenhaus v Ward, 70 NY2d 436, the Appellate Division said that in the event there is conflicting evidence in the record or different inferences can be drawn from the evidence in the record, "the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists."

Here, said the court, "any credibility issues were resolved by the Commissioner and we find no basis upon which to disturb the determination, which was supported by substantial evidence."

Addressing the penalty imposed on the employee by the Commissioner, termination, the Appellate Division applied the so-called "Pell Doctrine," Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, and held that "the penalty of termination of [Petitioner's] employment was not so disproportionate to the offense committed 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_04447.htm

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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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The United State Supreme Court's 2017 October Term - selected cases

The United State Supreme Court's 2017 October Term - selected cases  

Source: Justia

Below are selected cases of the 29 scheduled to be considered by the United States Supreme Court during its October 2017 term that may be of particular interest to those involved in or with the public sector:

Justia Daily Opinion Summaries is a free service, with 68 different newsletters, covering every federal appellate court and the highest courts of all US states. Justia also provides weekly practice area newsletters in 63 different practice areas.*

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Carpenter v. United States A case in which the Court will determine whether the warrantless seizure and search of cell phone records revealing the location and movements of a cell phone user over the course of 127 days violates the Fourth Amendment.

Christie v. National Collegiate Athletic Association A case in which the Court will decide whether a federal statute that prohibits modification or repeal of state-law prohibitions on private conduct impermissibly commandeers the regulatory power of states in contravention of New York v. United States.

Gill v. Whitford A case in which the Court will decide whether partisan gerrymandering claims are justiciable, and whether the district court erred in striking down Wisconsin’s redistricting plan as an unconstitutional partisan gerrymander.

* All daily and weekly Justia newsletters are free. You may subscribe to one or more newsletters clicking on daily.justia.com.

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

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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.).