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 November  29, 2017

Click on text highlighted in color to access the full report

Employer’s attempt to contractually shorten limitations period on FMLA claim fails

Transgender prof prevails on sex discrimination, retaliation claims in tenure denial

Dramatic uptick in major U.S. companies, law firms advancing LGBTQ nondiscrimination protections

Driver can’t be compelled to arbitrate misclassification claim; he wasn’t party to arbitration clause

Appointing authority imposed a more severe penalty than the one recommended by the hearing officer

Appointing authority imposed a more severe penalty than the one recommended by the hearing officer

OATH Index No. 2230/17

The employer alleged that the employee was absent without leave [AWOL] for two weeks, that the employee falsely attributed her absences to pre-approved leave granted under the Family Medical Leave Act ("FMLA"), that the individual  failed to supervise her subordinates and that the employee failed to attend a mandatory training class.

New York City Office of Administrative Trials and Hearings Administrative Law Judge Alessandra F. Zorgniotti recommended dismissal of the AWOL and falsification of leave charges in part, explaining that the employer had failed to show that the employee was AWOL or that she falsely attributed her absences to FMLA for the first week of her absence. The ALJ found that the record supported the employee's claim that her supervisor had approved her request for leave without pay and that that leave was supported by a valid doctor's note.

In contrast, Judge Zorgniotti found that the employer did prove the charges with respect to the second week of the employee's absence. In addition, Judge Zogniotti sustained the charges filed against the employee alleging that she failed to supervise her subordinates and that she had failed to attend the mandatory training class.

The ALJ recommended that the employee be given a penalty of a 60-day suspension without pay. The appointing authority, however, sustained all charges filed against the individual and terminated the individual's employment.

In Gradel v Sullivan Co. Public Works, 257 A.D.2d 972, the Appellate Division sustained the appointing authority's imposing a greater penalty that the one recommended by the hearing officer, explaining that there was ample evidence in the record to support the appointing authority's decision.

As a general rule, courts are reluctant to substitute their judgment for that of the employer on the fairness of penalties, but will do so if the penalty appears grossly unfair -- the standard established in Pell v Board of Education, 34 NY2d 222.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-2230.pdf

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Arbitrator rules that qualified retirees and future retirees to have the same health insurance coverage as the employer's active employees

Arbitrator rules that qualified retirees and future retirees to have the same health insurance coverage as the employer's active employees
Monroe County Deputy Sheriffs' Assn., Inc. (Monroe County), 2017 NY Slip Op 08107, Appellate Division, Fourth Department

Supreme Court granted the Monroe County Deputy Sheriffs' Association's petition to confirm the award rendered in a labor arbitration directing Monroe County and the Monroe County Sheriff to provide qualified retirees and future retirees from the Monroe County Sheriff's Office with the same health insurance coverage - here coverage for the dependent child of a retiree until the child reaches the age of 26 years - that was being  provided to active employees.

The Appellate Division cited the federal Affordable Care Act, 42 USC §300gg-14 [a] and the collective bargaining agreement (CBA) between the parties as the authority for the arbitrator's award.

The court rejected the County's and the Sheriff's claim that the arbitrator exceeded his power in fashioning the award, explaining that "It is well settled that an arbitrator exceeds his or her power within the meaning of CPLR §7511(b)(1) (iii) where the arbitrator's award " clearly exceeds a specifically enumerated limitation on the arbitrator's power."

Further, said the Appellate Division, "To exclude a substantive issue from arbitration . . . generally requires specific enumeration in the arbitration clause itself of the subjects intended to be put beyond the arbitrator's reach." The court then concluded that in this instance "the arbitrator did not exceed a specifically enumerated limitation on his power."

The Appellate Division also rejected the County's and Sheriff's contention that the arbitrator's award was irrational.

Citing Matter of Lackawanna City School District [Lackawanna Teachers Federation], 237 AD2d 945, the court decided that the arbitrator's interpretation of the CBA was not completely irrational and thus his ruling was beyond its power to review because "An arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08107.htm

Procedural considerations when suing for alleged violations of free speech, unlawful employment discrimination and unlawful retaliation complaints

Procedural considerations when suing for alleged violations of free speech, unlawful employment discrimination and unlawful retaliation complaints

2017 NY Slip Op 07985, Appellate Division, Second Department

A New York City Administrative Law Judge [ALJ] commenced this action against the City of New York, her agency and five employees in her agency, alleging causes of action to recover damages for (1) violation of her free speech and petition rights under the New York State Constitution, Article I, §§8 and 9; (2) employment discrimination on the basis of sex and age in violation of the New York City Human Rights Law [NYCHRL] and (3) unlawful retaliation in violation of the NYCHRL for having made complaints of sexual harassment and age discrimination.

The complaint alleged that ALJ and other administrative law judges spoke out internally within the agency and externally to public officials and the press about an alleged agency practice of improperly pressuring administrative law judges to issue recommended decisions in favor of the agency and to impose maximum fines. 

ALJ contended that she was demoted and subjected to other retaliation due to this speech and to her complaints concerning alleged sexual harassment. ALJ's complaint also alleged the existence of a pattern of age discrimination within the agency.

Supreme Court granted the agency's CPLR 3211 motion to dismiss ALJ's complaint, denied her motion to amend her complaint. ALJ appealed these Supreme Court rulings to the Appellate Division.

Among the procedural issues considered by the Appellate Division were the following:

Motion to Dismiss: The Appellate Division said that a complaint "is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory."* The court explained that "Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff [here ALJ] will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss" noting that ALJ's allegations were "sufficient to state a cause of action to recover damages for sexual harassment in violation of the NYCHRL."  In the words of the Appellate Division, Supreme Court "erred in determining that the cause of action must be dismissed because the behavior [alleged] constituted no more than petty slights or trivial inconveniences. A contention that the behavior was a petty slight or trivial inconvenience constitutes an affirmative defense which should be raised in the defendants' answer and does not lend itself to a pre-answer motion to dismiss."

Claims of Age Discrimination: The Appellate Division ruled that ALJ's  allegations of disparate treatment of older employees, including herself, and that her demotion was based, in part, on age discrimination, sufficiently stated a cause of action to recover damages for age discrimination in violation of the NYCHR, explaining that "The fact that the individual defendants were approximately the same age as ALJ does not render the cause of action insufficient."

Complaints alleging Sexual Harassment and Age Discrimination: The Appellate Division held that Supreme Court  erred in granting dismissal of the cause of action alleging based on ALJ's complaints of sexual harassment.  ALJ's complaint, however, failed to allege that she had complained about the alleged acts of age discrimination and thus Supreme Court properly granted dismissal of the cause of action alleging unlawful retaliation based on complaints of age discrimination.

Notice of Claim: The Appellate Division also held that Supreme Court had properly granted dismissal of the cause of action alleging violations of the State Constitution because ALJ failed to serve a notice of claim. The court explained that ALJ's action "does not fall within the public interest exception to the notice of claim requirement, since the complaint seeks to vindicate the private rights of [ALJ], and the disposition of the claim will not directly affect or vindicate the rights of others."**

Leave to Amend the Complaint: Here the Appellate Division found that Supreme Court improvidently exercised its discretion in denying ALJ's cross motion for leave to amend her complaint to assert an alternative First Amendment retaliation cause of action pursuant to 42 USC §1983. In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit said the court.

Unlawful Retaliation: With respect to claims of unlawful retaliation under the NYCHRL, in the First Amendment context, a plaintiff "need only show that the retaliatory conduct in question would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights." The Appellate Division found that the allegations that ALJ was demoted following the internal complaints, and that she suffered a campaign of harassment following the external complaints, sufficiently pleaded that the subject speech was a substantial or motivating factor for an adverse employment action. As with unlawful retaliation claims under the NYCHRL, in the First Amendment context, a plaintiff "need only show that the retaliatory conduct in question would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights" and Supreme Court should have granted ALJ leave to amend the complaint.

* In addition the Appellate Division noted that Supreme Court may consider affidavits submitted by a plaintiff to remedy any defects in the complaint. 

** In contrast, the Appellate Division noted that a notice of claim was not required with respect to ALJ's perfecting her First Amendment retaliation cause of action pursuant to 42 USC §1983.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_07985.htm

Amendment to Civil Service Law §167(8) does not violate the compensation clause for certain judges set out in Article VI, §25[a] of the State Constitution

Amendment to Civil Service Law §167(8) does not violate the compensation clause for certain judges set out in Article VI, §25[a] of the State Constitution

Bransten v State of New York, 2017 NY Slip Op 08168, Court of Appeals

In 2011 the State-employee unions, in the course of collective bargaining, agreed to a percentage reduction to the State's employer contributions for health insurance to avoid layoff, salary freezes and unpaid furloughs. This negotiated agreement was reflected in an amendment to §167.8 of the Civil Service Law.*

The question addressed in Bransten: Does Civil Service Law §167(8), as amended, authorize a reduction of the State's contribution to health insurance benefits for State employees, including members of the State judiciary? With respect to judges the court concluded that the State's contribution for health insurance premiums is not "judicial compensation" protected from diminution and salary deductions for health insurance contributions does not singling out the judiciary for disadvantageous treatment.

The court concluded that "[a] contribution to health care premiums, which varies from year to year, is not compensation  and although the reduction of the employer's health insurance contributions "indirectly diminishes judicial compensation," the Legislature has not singled out judges for disadvantageous treatment. Where, as here, the reduction applies to all State employees, there is not even a suggestion that judges are being targeted. 

These reductions in the State's "employer contributions for health insurance" were also applied to retired judges and other retired employees of the State as the employer notwithstanding the fact that such retirees were not in danger of suffering " layoff, salary freezes and unpaid furloughs" nor were they members of a collective bargaining unit within the meaning of the Taylor Law [Article 14 of the Civil Service Law Article].

The decision, however, apparently directly addresses only the impact of the change on active employees. The issue of whether the reduction was lawfully applied to pre-amendment retirees was not specifically  addressed by the Court of Appeals.

Significantly, Judge Dillon, in a concurring opinion, noted the court had, "[b]y concluding that a direct diminution of judicial salary has not been mathematically established, in dollar terms," did not reach the secondary question of whether the State's reduced percentage contributions toward health care premiums for the judiciary and its retirees was accomplished in a discriminatory or non-discriminatory manner as compared with other employees of the State" and "[a]ccordingly, the judgment should be reversed without prejudice to plaintiffs recommencing a new action, if they be so advised." 

* §167.8 of the Civil Service Law was amended by §2 of Chapter 491 of the Laws of 2011 to read as follows [old text stuck out, new text underlined]:

8. Notwithstanding any inconsistent provision of law, where and to the extent that an agreement between the state and an employee organization entered into pursuant to article fourteen of this chapter so provides, the state cost of premium or subscription charges for eligible employees covered by such agreement may be [increased] modified pursuant to the terms of such agreement [and for a duration provided by such agreement and pursuant to rules and regulations as may be established by the president. Such increase in state cost shall only apply during the period of eligibility provided by such agreement and shall not be applied during retirement]. The president, with the approval of the director of the budget, may extend the modified state cost of premium or subscription charges for employees or retirees not subject to an agreement referenced above and shall promulgate the necessary rules or regulations to implement this provision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08168.htm

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 25, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 25, 2017

Source: Office of the State Comptroller

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:

Office of General Services (OGS) and the State Education Department (SED): Preferred Source Contracting (Follow-Up) (2017-F-15)
New York state’s Preferred Source Program grants “preferred source” status to Corcraft and not-for-profit organizations that serve and employ the blind, severely disabled, and veterans. OGS is the state’s central procurement agency. The New York State Industries for the Disabled (NYSID) is the agency designated to facilitate orders among agencies for the severely disabled and veterans’ workshops. SED is responsible for the monitoring and oversight of NYSID and for ensuring NYSID is in compliance with all applicable regulations. An audit released in June 2016 found that SED provided only minimal oversight of NYSID offering little assurance NYSID was awarding contracts in a manner that best meets the purpose of the program as well as meeting program requirements. In a follow-up, auditors found OGS officials have made significant progress in addressing the issues identified in the initial audit.

Department of Health (DOH): Long Island Association for AIDS Care (LIAAC) (2017-BSE6-0)

For the period of February 2014 through May 2015, auditors found the claims for payment LIAAC submitted contained overbillings of $15,777. The claims were returned to DOH. Auditors also identified $95,918 in refunds and reimbursements from other entities for medical and dental expenses paid to LIAAC’s related entity and group medical benefits provider, the Long Island Network of Community Services, which should have been remitted to DOH.

Department of Health: Eye Care Provider and Family Inappropriately Enroll as Recipients and Overcharge for Vision Services (Follow-Up) (2017-F-11)

An initial audit report issued in March 2016 found the owner of a Medicaid eye care provider inappropriately enrolled as Medicaid recipients and inappropriately billed Medicaid for vision services. In a follow up, auditors found that of the initial report’s eight audit recommendations, two were implemented, five were partially implemented, and one has not yet been implemented. In March of 2016, the Office of the Medicaid Inspector General (OMIG) commenced an investigation of the provider, the Provider’s billing company, and the recipients identified in the original audit. At the time of our follow-up review, the investigation was ongoing and OMIG officials stated that recoveries of Medicaid overpayments and corrective actions would occur, if warranted, when the investigation was complete.

Department of Health: Improper Payments for Recipients No Longer Enrolled in Managed Long Term Care Partial Capitation Plans (Follow-Up) (2017-F-10)

An initial audit released in March 2016 found that Medicaid paid plans $21.4 million in capitation payments for recipients who were subsequently disenrolled. By the end of the audit fieldwork, some capitation payments had been recouped and about $12 million still needed to be recovered from the plans. In a follow-up, auditors found DOH officials made significant progress in addressing the problems identified in the initial audit report. However, further actions are still needed as only $3.4 million of the $12 million in improper capitation payments had been recovered.

Higher Education Services Corporation, Tuition Assistance Program: New York College of Health Professions (2016-T-4)

Auditors determined the College of Health was overpaid $298,224 because school officials incorrectly certified some students as eligible for State financial aid awards. Incorrect certifications include eleven students who received awards but did not demonstrate academic preparedness and eight students who did not meet the requirements for full-time status.

Metropolitan Transportation Authority, Triborough Bridge and Tunnel Authority (TBTA): Selected Aspects of Collection of Bridge and Tunnel Tolls and Feels (2016-S-64)

While TBTA makes efforts to collect unpaid tolls, we found $11.3 million in tolls that were either written off ($5.4 million in OTG tolls) or uncollected ($2.3 in OTG tolls and $3.6 in Deferred Tolls).In addition, TBTA had more than $72 million in unpaid fees for the Henry Hudson Bridge from 2013 through 2015. TBTA officials advised that they consider the fees a deterrent, but have waived as much as 90 percent of fees due upon receipt of the payment of the unpaid tolls. TBTA also did not fully utilize the new DMV registration suspension program, as evidenced by submitting only a limited number of registrations for suspension each week after the initial introductory period.

State Education Department: Lifeline Center for Child Development, Inc., Compliance with the Reimbursable Cost Manual (2016-S-95)

Lifeline is a Queens, New York-based not-for-profit organization authorized by SED to provide preschool special education services to children with disabilities who are between the ages of 3 and 5. For the three fiscal years ended June 30, 2015, auditors identified $304,192 in reported costs that did not comply with state guidelines, including $80,506 in bonuses.

State Education Department: HeartShare Human Services, Inc., Compliance with the Reimbursable Cost Manual (2016-S-45)

HeartShare is a New York City-based not-for-profit organization authorized by SED to provide preschool special education services to children with disabilities who are between the ages of 3 and 5.  For the three fiscal years ended June 30, 2014, auditors identified $1,529,789 in reported costs that did not comply with state requirements, including: $891,018 in non-program expenses for compensation paid to 71 individuals who did not work for HeartShare’s SED preschool cost-based programs; $204,855 in ineligible employee bonuses that did not comply with SED’s reimbursement requirements; and $201,237 in over-allocated expenses, including $60,338 in personal service costs and $140,899 in other than personal service costs.

Collective bargaining agreements between employee organizations and public employers in New York State are posted on the Empire Center's website

Collective bargaining agreements between employee organizations and public employers in New York State are posted on the Empire Center's website 
Source: The Empire Center* 

Click on text highlighted in color  to access the text of the agreements. 

Local government and school district collective bargaining agreements were added to SeeThroughNY, the Empire Center’s transparency website on November 21, 2017. The newly added collective bargaining agreements include 120 public school teacher contracts, 28 firefighter contracts, and 62 police contracts.

In addition, 164 school superintendent employment contracts have been updated on SeeThroughNY.

Broken down by region, the contracts are distributed as follows:

43 in the Capital Region, including North Colonie’s superintendent contract and Saratoga Springs’ fire contract;

26 in Central New York, including teacher contracts in Onondaga County and fire contracts in Oswego County;

33 in the Finger Lakes, including fire contracts in Monroe County and teacher contracts in Genesee County;

63 on Long Island, including 11 teacher contracts in Nassau County and 12 in Suffolk County;

71 in the Mid-Hudson region, including police contracts in Westchester County;

30 in the Mohawk Valley, including three superintendent contracts in Oneida County and four in Herkimer County;

28 in the North Country, including superintendent and teacher contracts for Clinton County;

34 in the Southern Tier, including police contracts for Tompkins County and fire contracts for Broome County; and

46 in Western New York, including the Buffalo city schools’ first contract with its teachers union in 12 years.

More than 6,700 current and expired public-sector union and school superintendent employment contracts are now searchable on SeeThroughNY’s contract database, the most comprehensive in the state.

Complete copies of hundreds of local government and school district labor union contracts were added today to SeeThroughNY, the Empire Center’s transparency website.

* The Empire Center, based in Albany, New York, self-describes itself as an independent, non-partisan, not-for-profit think tank dedicated to promoting policies to make New York a better place to live, work and do business.