Opportunity to Better Understand NYS Paid Family Leave Law

Opportunity to Better Understand NYS Paid Family Leave Law 
Source: NY Muni Blog

New York State is set to enact the strongest paid family leave program in the country.  The program, New York’s Paid Family Leave Law (“PFL”), takes effect January 1, 2018, and will provide New Yorkers job-protected, paid leave to care for a loved one who is seriously ill, bond with a new child, or help the family when a member is deployed for military service. Nearly every private employee in New York will be eligible to receive benefits—and there are many implications for business owners. 

Harris Beach Labor and Employment Law Attorney Ibrahim Tariq will present on employers’ most frequently asked Paid Family Leave questions and best practices for businesses day-to-day PFL administration. Mr. Tariq has been in contact with staff counsel at the Workers’ Compensation Board this fall over numerous PFL questions. He will share and provide input on the latest highlights that New York employers need to know to comply with the Department of Labor’s PFL requirements. PFL is one of three labor and employment topics at the seminar, including updates on the Affordable Care Act, and the latest updates from the National Labor Relations Board. 

To sign up for the Harris Beach Labor and Employment 2017 Seminar Series: Session 4 Thursday, November 16, 2017 8am-10am Harris Beach PLLC 99 Garnesy Road, Pittsford, NY 14534, 

Please register here or contact rsvp@harrisbeach.com 

Counseling memorandum issued to an employee

Counseling memorandum issued to an employee

Decisions of the Commissioner of Education, Decision No. 17,236

The genesis of this appeal to the Commissioner of Education was the placement of a counseling memorandum in the educator's [Petitioner] personnel file. 

The seminal decision concerning placing a "counseling memorandum" in an educator's personnel file is Holt  v Board of Education, Webutuck Central School District, 52 NY2d 625. In Holt the Court of Appeals held that, although a disciplinary reprimand may not be issued to a teacher without a finding of misconduct pursuant to Education Law §3020-a, critical administrative evaluations need not be afforded such procedural protections.* 

In reviewing the letters placed in the teacher's file in Holt, the court found that the purpose of the communications was to call to the teacher's attention a relatively minor breach of school policy and to encourage compliance with that policy in the future.  The court held that critical written evaluations do not rise to the level of disciplinary reprimands when the purpose of such evaluations is to warn or instruct, but not to punish.

Turning to the merits of the instant appeal, the Commissioner observed that supervisory personnel of a school district have the right and the duty to make such evaluations as an adjunct to their responsibility to supervise the faculty of the school district, citing Holt.

Although the Commissioner found that the language "in the assistant superintendent’s letter is critical," the record supported a finding that the purpose of the memorandum was to call Petitioner’s "attention to breaches of school policy and encourage compliance with such policies in the future." Accordingly, the Commissioner ruled that the assistant superintendent permissibly issued the counseling memorandum without resort to the procedural protections of Education Law §3020-a."

Petitioner also alleged that "the counseling letter is internally inconsistent in that it indicates that its purpose was 'to warn [Petitioner] of the serious consequences of any future incident, and to instruct [him] ...' but also states that it does not rule out formal disciplinary action for this incident." 

The Commissioner acknowledged Petitioner's concerns but explained that the counseling memorandum "correctly recognizes that, so long as 'a timely charge of misconduct is made and the procedural requirements of section 3020-a of the Education Law have been fulfilled,' a school district may make 'formal disciplinary use' of counseling memoranda such as the memorandum at issue in this appeal."

On this point, in Bigelow v Trustees of the Village of Gouverneur, 63 NY2d 470, the court held that an individual's personnel record may be considered in determining the disciplinary penalty to be recommended or imposed in the event the individual is found guilty of one or more disciplinary charges, provided the individual is advised of the personnel records that will be so considered and he or she is given an opportunity to rebut the content of those personnel records that will considered for that purpose.

* See, also, Matter of Fusco, Comm. of Ed. Decision 14,396 and Matter of Irving, Comm. of Ed. Decision 14,373 for a NYPPL summary of decisions of the Commissioner of Education concerning constructive criticism as distinguished from disciplinary action. The URL is https://publicpersonnellaw.blogspot.com/2011/01/constructive-criticism-or-discipline.html

The decision is posted on the Internet at:

 http://www.counsel.nysed.gov/Decisions/volume57/d17236

Employee Scheduling Regulations proposed by the New York State Department of Labor

Employee Scheduling Regulations proposed by the New York State Department of Labor

Source: New York State Department of Labor

The Department of Labor has filed proposed rules addressing  what is commonly called as "just-in-time," "call-in" or "on-call" scheduling.

The text of the proposed regulation is posted on the Internet at:

https://labor.ny.gov/workerprotection/laborstandards/pdfs/employee-scheduling-proposed-rule.pdf

The full rulemaking package will appear in the November 22, 2017 issue of the State Register, and will be subject to a comment period for 45 days from that publication date. You may submit a comment on this proposed regulation by sending an email addressed to hearing@labor.ny.gov.

The Department of Labor developed these regulations after conducting four hearings and receiving testimony. Information concerning these hearings is posted on the Internet at:

https://labor.ny.gov/workerprotection/laborstandards/oncallscheduling.shtm

A school employee who elected to submit an issue for resolution through a contractual grievance procedure may not appeal the same issue to the Commissioner of Education pursuant to Education Law §310

A school employee who elected to submit an issue for resolution through a contractual grievance procedure may not appeal the same issue to the Commissioner of Education  pursuant to Education Law §310

Decisions of the Commissioner of Education, Decision No. 17,235

In this appeal to the Commissioner of Education, the petitioner [Petitioner] contended that certain actions taken by school district administrators [District] and the president of employee organization [Association] of a recognized or certified employee organization  for the purposes of collective bargaining under Article 14 of the Civil Service Law, the Taylor Law, were contrary to the terms of the relevant collective bargaining agreement [CBA] between the Association and the District.

The Association sought dismissal of the allegations filed against the Association on the ground that unions and their representatives are not subject to the jurisdiction of the Commissioner in an appeal filed pursuant to Education Law §310.

The Commissioner agreed, holding that the Petitioner's appeal against the Association must be dismissed for "lack of jurisdiction." The Commissioner explained that "It is well-settled that union organizations and their representatives are not subject to the jurisdiction of the Commissioner of Education under Education Law §310," and dismissed Petitioner's claims against the Association.

With respect to Petitioner's claims against the District, the Commissioner ruled that this branch of Petitioner's appeal must be dismissed for two reasons: lack of jurisdiction and election of remedies. 

The Commissioner explained that "It is well-settled that a school employee who elected to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner pursuant to Education Law §310 for review of the same matter."*

In the alternative, the Commissioner observed that Petitioner’s contract claims also would be dismissed under the doctrine of election of remedies as a prior commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner of Education.

* In Antinore v State, 40 NY2d 6, the court said that a union could bargain away the employee’s statutory disciplinary rights in favor of an alternative disciplinary procedure so long as the alternate procedure provided constitutional due process protections equivalent to those available under the statutory procedure that it replaced where the law permitted the negotiation of such an alternative disciplinary procedure.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17235

Where an administrative interpretation of a law or rule has a rational basis the court will affirm the ruling even if it would have interpreted the provision differently

Where an administrative interpretation of a law or rule has a rational basis the court will affirm the ruling even if it would have interpreted the provision differently

Matter of United Fedn. of Teachers v City of New York, 2017 NY Slip Op 07324, Appellate Division, First Department

Supreme Court denied the United Federation of Teachers, Local 2, AFT, AFL-CIO [UFT] Article 78 petitions seeking, among other things, the annulment of the determination of the New York City Board of Collective Bargaining [Board] that UFT had breached its duty of fair representation it owed to its member, Jose Morales. The court directed UFT and the City of New York to process Morales's grievance "pursuant to the contractual grievance process without accepting any defense based on the untimeliness of the appeal."*

The City and UFT appealed the Supreme Court's ruling.

Finding that the Board's determination is not arbitrary and capricious, inconsistent with lawful procedures, or an abuse of discretion, the Appellate Division affirmed the lower court's ruling and dismissed the City's and UFT's appeals. The Appellate Division said that UFT was not deprived of an opportunity to establish an excuse for its conduct, because it was obligated to set forth a statement of facts and legal arguments in its answer to Morales's second improper practice petition, and UFT had the right to submit evidence in support of that answer.

Addressing UFT's contention that it was not required to pursue the appeal under a provision of the collective bargaining agreement, the Board noted that "If the grievant is not satisfied with the determination of the agency head or designated representative the grievant or the Union [sic] may appeal to the Commissioner of Labor Relations in writing within ten (10) workdays of the determination."

In Matter of Uniformed Firefighters Assn. of Greater N.Y. v City of New York, 114 AD3d 510, leave to appeal denied, 23 NY3d 904, the court held that "if the [Board's] determination has a rational basis, we must affirm, even if this Court would have interpreted the provision differently."

Significantly, the Appellate Division observed that the Board interpreted the provision's language emphasized above permits UFT "to decline to pursue a grievance in the first place, but [did] not to excuse a union from exercising diligence in appealing from an adverse Step II determination once the union has begun to represent an employee." The Appellate Division said it "must defer to this reasonable interpretation" by the Board.

* The Appellate Division noted the absence of any apparent excuse for UFT's failure to file the appeal for more than four months after the expiration of the contractual 10-business-day deadline to file an appeal from a Step II determination.

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2017/2017_07324.htm

An applicant's possession of a Certificate of Relief from Disabilities does not, in and of itself, establish an entitlement to employment

An applicant's possession of a Certificate of Relief from Disabilities does not, in and of itself, establish an entitlement to employment
2017 NY Slip Op 07306, Appellate Division, First Department

The New York City Department of Education [DOE] rejected the application for security clearance for a position as a public school cleaner submitted by the Petitioner in an Article 78 action. Petitioner brought the Article 78 action seeking a court order annulling DOE's action. Supreme Court granted the petition and remanded the matter to DOE for further proceedings. DOE thereupon appealed the Supreme Court's ruling.

Citing Matter of Dempsey v New York City Department of Education, 25 NY3d 291, the Appellate Division unanimously reversed the Supreme Court's decision "on the law" and dismissed Petitioner's Article 78 action.

The court explained that the denial of Petitioner's application for security clearance for a position as a public school cleaner has a rational basis in the record and was not arbitrary and capricious in view of DOE's finding that Petitioner's misdemeanor conviction "caused grave concern when considering his moral character, and indicated poor judgment and reckless behavior."

Further, said the Appellate Division DOE's action is supported by the facts surrounding Petitioner's subsequent conviction for petit larceny, which conviction "bears a direct relationship to Petitioner's application for security clearance," supports DOE's concluding that Petitioner's employment would pose "an unreasonable risk to property or the safety and welfare of specific individuals or the general public."

Noting that DOE properly considered the factors enumerated in Article 23-A of the Correction Law* with respect to the employment of an individual having a previous criminal conviction, the court opined that the fact that DOE gave greater weight to factors unfavorable to the Petitioner than to those favorable to him did not support the conclusion that DOE did not consider such favorable factors. 

Another element considered by the Appellate Division was that Petitioner submission of a Certificate of Relief from Disabilities in support of his application for employment. The court, however, ruled that although such a Certificate "creates 'a presumption of rehabilitation' it does not establish an entitlement to employment." §753.2 provides that "In making a determination pursuant to section seven hundred fifty-two of this chapter, the public agency or private employer shall also give consideration to a certificate of relief from disabilities or a certificate of good conduct issued to the applicant, which certificate shall create a presumption of rehabilitation in regard to the offense or offenses specified therein."

Lastly, the Appellate Division noted that Petitioner's failed to disclose a prior termination and criminal record in violation of DOE's rules and regulations. This omission, said the court, provided an "independent and rational basis for denying security clearance" to Petitioner.

* §753.1 of Article 23-A of the Correction Law sets out the factors to be considered with respect to the employment of an applicant having a previous criminal conviction as follows:

(a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.

(b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person.

(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.

(d) The time which has elapsed since the occurrence of the criminal offense or offenses.

(e) The age of the person at the time of occurrence of the criminal offense or offenses.

(f) The seriousness of the offense or offenses.

(g) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.

(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_07306.htm

Selected reports posted in Employment Law News by WK Workday

Selected reports posted by WK Workday November 7, 2017

Source: Wolters Kulwer 

Click on text highlighted in color  to access the full report

9th Circuit approves gross-up of lump sum Title VII damages to compensate for increased tax liability

Visible skin lesions suggest employer may have known of employee’s disability

Applicant who declined ‘unreasonable’ job offer can advance failure-to-hire claim

New EEOC online Public Portal up and running

State workers fail (again) in privacy challenge to search of their drug records in state database

Employee fired for submitting false FMLA paperwork, not disability or leave

Jury to decide if university overrode tenure recommendation in retaliation for prof’s EEOC charge

Driver who refused fingerprinting as ‘mark of the devil’ states religious bias claim

Petitioner's appeal from a Board of Education's seniority determination for the purposes of layoff dismissed for failure to make "proper service" on all the parties

Petitioner's appeal from a Board of Education's seniority determination for the purposes of layoff dismissed for failure to make "proper service" on all the parties

Decisions of the Commissioner of Education, Decision No. 17,234

The Commissioner of Education dismissed a teacher's challenge to a Board of Education's decision concerning her seniority for the purposes of a layoff because the educator failed to comply with the service requirements set out in the Commissioner's Regulations on all the parties involved.

The Commissioner's regulation require that the petition be personally served upon each named respondent. 

1. If a school district is named as a respondent, service upon the school district must be made personally by delivering a copy of the petition to "the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service."

2. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such. Joinder as a necessary party requires that an individual be clearly named as a necessary party by name in the caption of the petition and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.

In this appeal the Commissioner found that the record indicated that the appellant [Petitioner] did not personally serve a necessary party [Respondent]. Although Petitioner attempted to effect service upon Respondent by serving papers upon a “person of suitable age and discretion,” the affidavit of service failed to demonstrate that Petitioner made any “diligent search” for Respondent before resorting to this method of "substitute service."

The Commissioner noted that the affidavit of service did not detail any prior attempts regarding service but Petitioner merely stated in her reply that two trips to Respondent's home were made and then asserts, upon information and belief, that the process server was informed on the first attempt that Respondent was on vacation. 

Petitioner then asserted that a second attempt was made to see if Respondent had returned from vacation and because the statute of limitations was near, service upon an individual of suitable age and discretion should be deemed sufficient for the purpose of "proper service" upon Respondent. 

The Commissioner ruled that Petitioner failed to prove that Petitioner's two attempts at service constitute a diligent effort to find Respondent "where [Petitioner] has not provided any evidence to support her assertion in her reply, made upon information and belief, that the process server was told that [Respondent] was on vacation and there is no evidence in the record concerning how much time elapsed between the first and second attempts."

In the words of the Commissioner, "Absent evidence of diligent efforts to effect service upon [Respondent], service upon an individual of suitable age and discretion is ineffectual and the appeal must be dismissed as to [Respondent] for improper service."

The significance of this is that as the rights of Respondent could be adversely affected should Petitioner to prevail in this appeal and thus "Respondent is a necessary party and should have been joined and served as such."

The Commissioner dismissed Petitioner's appeal for "failure to join a necessary party."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17234

 __________________________

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  

 __________________________

Governmental immunity as a defense in the event a government entity or a government officer or employee is named as a defendant in litigation

Governmental immunity as a defense in the event a government entity or a government officer or employee is named as a defendant in litigation

Waterman v City of Rochester, 2017 NY Slip Op 07048, Appellate Division, Fourth Department

The City of Rochester [Rochester*] moved for summary judgment dismissing the action brought by Henry J. Waterman, claiming "government immunity." Supreme Court denied Rochester's  motion. Rochester appealed but the Appellate Division sustained the Supreme Court's ruling.

The Appellate Division said that the lower court had "properly denied" Rochester's motion for summary judgment dismissing the complaint as the Rochester defendants were not entitled to "governmental immunity." Governmental immunity, explained the court, is not triggered when a public employee, acting in the course of his or her employment, "commits an ordinary tort that anyone else might commit — for example, when the employee is negligent in driving [a vehicle]."

In contrast, public officers and employees,** may claim "qualified immunity," or, in some instances, absolute immunity, when named as a defendant in litigation alleging acts or omissions involving or related to the performance of their official duties.

The "Doctrine of Absolute Immunity" insulates certain public officials from civil lawsuits involving the performance of their official duties. Included among those protected by “absolute immunity” are legislators in connection with their legislative duties and judicial and quasi-judicial officers performing judicial or quasi-judicial functions. 

The Doctrine of Qualified Immunity may be an available defense when public officers and employees are being sued unless it can be shown that “clearly established” law which a reasonable official or employee in his or her position would have, or should have, known was violated.***

As to a public employee claiming "qualified immunity" as a defense in the course of litigation, the claim of "Qualified Immunity” is typically subjected to a "two prong test applied to determine if a public official or employee is entitled to "qualified immunity" when he or she is sued."

The first prong of the test addresses the question: Has the petitioner “stated a cause of action.” If the answer is yes the court turns to the second prong of the test.

The second prong of the test asks did the “[g]overnment official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he [or she] is doing violates that right.”

* David J. Bagley, II, an employee of the City of Rochester, was named as a co-defendant in this action.

** Although not all public employees are public officers, except in rare situations all public officers are public employees.

***  Under certain circumstances an attorney in private practice employed by public entity for certain purposes may be eligible to claim a qualified immunity [see NYPPL at: 
https://publicpersonnellaw.blogspot.com/2010/09/attorney-in-private-practice-employed.html].


The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_07048.htm

New York State's Human Rights Law requires the compliant to be filed with the State Division of Human Rights within one year of the most recent act of the unlawful discrimination alleged

New York State's Human Rights Law requires the compliant to be filed with the State Division of Human Rights within one year of the most recent act of the unlawful discrimination alleged

2017 NY Slip Op 06968, Appellate Division, Second Department

The Petitioner in this action, a long-term, at-will employee of the Town, was advised that his employment would be terminated as part of the Town's transitioning to the incoming administration of a newly elected Town Supervisor. Ultimately a formal resolution terminating the employment of Petitioner and several other employees was approved by the Town Board and the individuals affected notified of that fact.

Petitioner filed a complaint with the New York State Division of Human Rights [DHR] alleging that the termination of his employment was the result of discrimination based on his age, gender, and ethnicity. DHR subsequently issued an administrative determination finding that the matter was untimely because the complaint was filed more than one year after the most recent alleged discriminatory act. Petitioner commenced this CPLR Article 78 proceeding but Supreme Court denied the petition, confirmed DHR's determination, and dismissed the proceeding.

The Appellate Division affirmed the lower court's ruling, explaining that Executive Law §297(5) provides that "[a]ny complaint filed pursuant to this section must be so filed within one year after the alleged unlawful discriminatory practice." Thus, said the court, §297(5) "is in the nature of a statute of limitations" and therefore mandatory. Further, noted the court, the limitations period commences running on the date that a claimant receives his or her notice of the alleged discriminatory act or practice.

Rejecting Petitioner's argument that the one-year period in which he was required to file a complaint with the DHR begin to run on his last day of employment, the Appellate Division said the statute of limitations began to run on date that he received notice of the termination of his employment, i.e., on the date on which the individual knew, or should have know, he or she was the victim of the alleged act of unlawful discrimination.*

As it was undisputed that Petitioner had not file his complaint with DHR within the one year period following his receiving the notice of the termination of his employment as required by §297(5), the Appellate Division ruled that Supreme Court had properly sustained DHR's determination that the complaint was untimely.

* Gaston v NYC Department of Health, 432 F.Supp.2d 321. See, also, Fager v Board of Education, Rochester City School Dist., 73 AD3d 1458, in which the Appellate Division held that the statute of limitations to challenge an administrative decision starts to run when the determination becomes “final and binding.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06968.htm