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 December 13, 2017

Click on text highlighted in color to access the full report 

Supervising company may be liable for harassment of female construction worker

Trump DOJ reverses course on public sector ‘agency fees’

Bipartisan bill would invalidate predispute agreements to arbitrate a ‘sex discrimination dispute’

Second Circuit finds trial court got Glatt right; magazine interns reap educational benefits, not pay

Possessing “over-the-counter and, or, prescription drugs or harmful substances” on school property

Possessing “over-the-counter and, or, prescription drugs or harmful substances” on school property

Decisions of the Commissioner of Education, Decision No. 17,269

The lunch bag belonging to a student [W.H.] who is the subject of this appeal was found to have in it "over the counter medication.”  The principal advised W.H.'s parents [Petitioners ] that W.H. would be suspended for three days based upon his possession of “over the counter medication.” Petitioners told the principal that the pills were “vitamin C, Olive Leaf extract and Echinacea supplements.” 

The principal advised Petitioners that, in accordance with school policy, over the counter medications must be authorized by parents and physicians and may only be administered by the school nurse.  The principal requested that the student be immediately picked up from school. The school principal then advised Petitioners that W.H.'s possession of the supplements violated the portion of Marathon Central School District's code of conduct prohibiting “conduct that endangers the safety, morals, health, or welfare of others.”  A second letter described the supplements as “unknown substances” and noted that the student “admitted to having them in his possession.”

Petitioners subsequently met with the superintendent and the principal and explained that [1] they were aware of the district's policy concerning the administration of over-the-counter medications and [2] the pills which the student possessed were nutritional supplements, which the Food and Drug Administration considers food, not drugs. 

The superintendent declined to modify the student’s three-day suspension, and Petitioners thereafter appealed to school board. The president of the school board told Petitioners that the board had considered their appeal and upheld the three-day suspension and Petitioners appealed to the Commissioner seeking to have the student’s suspension be expunged from his record.

After considering a number of procedural issues, the Commissioner considered the merits of Petitioners' appeal and said that "in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief."

In this instance the Commissioner found that Petitioners had "met their burden of proof to show that [the school board's] decision was arbitrary and capricious. The Commissioner explained that Petitioners asserted, and the school board has not refuted, that the student possessed vitamins and herbal supplements which the Food and Drug Administration classifies as foods, not drugs.  Further, Petitioners admitted that they were and are aware of the school district's policy which prohibits the possession of “over-the-counter and, or, prescription drugs or harmful substances,” but contended that the “food” possessed by the student did not fall into any of these categories. 

In contrast the Commissioner found that the school board had not submitted any proof to refute Petitioners’ allegations or establish that the vitamins and herbal supplements at issue were over-the-counter drugs or harmful substances within the meaning of its policy that would support a finding that the student engaged in “conduct that endanger[ed] the safety, morals, health or welfare of others.”

Accordingly, the Commissioner ruled that "on this record" Petitioners have met their burden of proving that the student’s conduct was not prohibited by any portion of school board's code of conduct and ordered that W.H.'s suspension "be expunged from his record."

In addition, the Commissioner observed that:

1. Although the school district had argued that the supplements were subject to prohibition as “look-alike” drugs, this rationale is not supported by the evidence in the record as the school board had not established on this record that its code of conduct prohibits the possession of “look-alike” drugs or that the principal, superintendent or the school board relied upon such reasoning in imposing or upholding W.H.'s disciplinary penalty. 

2. Although the school board failed to demonstrate on this record that its code of conduct prohibits possession of vitamins, herbal supplements or “look-alike” drugs, nothing in this decision should be construed as prohibiting the school district from adopting a code of conduct which clearly apprises students and parents that students may be subject to discipline for the unauthorized possession of nutritional supplements, herbal remedies or look-alike drugs.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17269

Payment for "workdays" occurring during a school recess to an individual while he or she is on leave without pay

Payment for "workdays" occurring during a school recess to an individual while he or she is on leave without pay

Decisions of the Commissioner of Education, Decision No. 17,265

Citing Matter of Hilferty, 23 Ed Dept Rep 53 and other decisions of the Commissioner of Education, Commissioner MaryEllen Elia said that in determining the number of working days for which a teacher is entitled to salary pursuant to Education Law §3101(3) no deduction should be made from salary when a teacher performs all the services required of teachers in the district during the month. Accordingly, under ordinary circumstances the days of absence during a school recess should be counted as working days in computing a teacher's compensation.

In contrast, Commissioner Elia, citing Appeal of Zaccaro, 51 Ed Dept Rep, Decision No. 16,336, said that Education Law §3101(3) should not be interpreted to confer a right to salary for a teacher who has been placed on unpaid leave pursuant to the leave provisions of the applicable CBA. 

In this appeal, the school district argued that a teacher [Petitioner] was not entitled to compensation for the days during a spring recess because, pursuant to the provisions set out in a collective bargaining agreement, [CBA], she had been placed on unpaid leave under FMLA. The school district contended that Petitioner had been granted medical leave based on her representation that she would be using the maximum number of allotted sick days with pay for her leave and continue her absence pursuant to the  "federal Family Medical Leave Act" for the remainder.

Following a six week paid medical leave pursuant to the CBA, Petitioner was placed on unpaid leave pursuant to the FMLA until her return on April 16.  However, the district's schools were closed from April 4 through April 13 for spring break, during which time teachers were not required to report to work, but received their regular pay. Petitioner alleged that the school district reduced the her paychecks to reflect the district’s improper recoupment of monies paid for the work days over spring recess.  Petitioner appealed the school district's actions.

Petitioner alleges that respondents violated Education Law §3101(3) by recouping eight days’ pay for April 4, through April 15.  Petitioner requests an order directing respondents to pay her for the eight days that were allegedly improperly recouped.

The school district responded to Petitioner's appeal to the Commissioner alleging that Petitioner [1] had failed to state a cause of action; [2] did not demonstrate that she had a legal right to the relief requested; [3] that the issue "is solely reviewable pursuant to the district’s CBA, not in an appeal to the Commissioner"; and, in any event, [4] Petitioner was not entitled to pay prior to the stated return date in her request for leave, April 16.

Addressing a procedural issue, the Commissioner noted that Petitioner's employee organization, on behalf of Petitioner, commenced a grievance proceeding pursuant to the CBA regarding this matter seeking identical relief after Petitioner had filed her §301 appeal the Commission and which grievance was still pending.

Commissioner Elia opined that "It is well-settled that a school employee who has elected to submit an issue for resolution through a contractual grievance procedure may not bring an appeal pursuant to Education Law §310 for review of the same matter." She then ruled that "[i]n light of the strong public policy favoring internal grievance mechanisms and the finality of grievance processes in collective bargaining that was articulated by the Court of Appeals in Matter of Board of Education, Commack UFSD v. Ambach , 70 NY2d 501, Petitioner’s employee organization's subsequent filing of a grievance on the same issue of contractual interpretation and seeking the same relief has "divested the Commissioner of jurisdiction over the determinative issue in this appeal."*

Even though Petitioner's §310 appeal was filed before the employee organization filed its contract grievance on behalf of Petitioner, Commissioner Elia concluded that she must dismiss Petitioner's appeal under the doctrine of election of remedies.  To hold otherwise, reasoned the Commissioner, would create an unacceptable risk of conflicting decisions interpreting the relevant CBA provision and that "a decision under Education Law §310 that conflicts with a final determination in grievance arbitration would be in violation of the principles articulated by the Court of Appeals [in Commack]".

* Editor's comment: The decision indicates that the Commissioner elected to yield jurisdiction to the arbitration process to avoid "an unacceptable risk of conflicting decisions interpreting the CBA and a decision by the Commissioner interpreting the Education Law. The courts, however, have held that in the event a CBA provision conflicts with a right provide to an employee by statute, the statute controls.

For example, New York State's Civil Service Law provides that a permanent employee's seniority controls in the event of a layoff. This element – seniority – cannot be diminished or impaired by the terms of collective bargaining agreement as demonstrated by City of Plattsburgh v Local 788, 108 AD2d 1045.

In Plattsburgh the issue concerned the application of a Taylor Law contract provision dealing with seniority in a layoff situation. The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date that is to be used to determine an individual's service for seniority purposes under State law in the event of a layoff, i.e., the individual's date of initial permanent appointment in public service.

For example, assume Employee A was provisionally appointed on January 1, and  Employee B was provisionally appointed February 1, of the same year. Employee B, however, was permanently appointed on March 1 of the same year, while Employee A was permanently appointed a month later, on April 1.

Under the terms of the Local 788 collective bargaining agreement A would have greater seniority for layoff purposes than B. But §§80 and 80-a of the Civil Service Law provides that the date of an individual's most recent, uninterrupted "permanent appointment" determines his or her seniority for the purposes of layoff and so, under the law, B would have greater seniority than A.

When the City laid off A rather than B, the Union grieved, contending that under the seniority provision in the collective bargaining agreement, B should have been laid off. The City, on the other hand, argued that Civil Service Law §80 controlled and thus A,  having less seniority than B and had to be laid off before B.

Plattsburgh sought, and won, a  court order prohibiting arbitration. The court held that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.

It would appear that the rational set out in Plattsburgh should control in this instance. Absent legislative authority to enter into collective bargaining with respect to an employee benefit conferred by law, here the provisions of Education Law §3101(3), the law would control. 

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17265

Unless the employer provides the educator with a reasonable assurance of continued employment following a holiday recess a per diem educator is eligible for unemployment insurance

Unless the employer provides the educator with a reasonable assurance of continued employment following a holiday recess a per diem educator is eligible for unemployment insurance

Matter of Papapietro (Commissioner of Labor), 2017 NY Slip Op 08596, Appellate Division, Third Department

The Appellate Division reversed a decision by the Unemployment Insurance Appeal Board that held that a per diem teacher was ineligible to receive unemployment insurance benefits because it found that he had a reasonable assurance of continued employment following a holiday recess.

John Papapietro was a per diem substitute teacher for the Rochester City School District. In the week immediately prior to a holiday recess at the end of December 2015 Papapietro had worked at least three days. However, his application for unemployment insurance benefits due to a "lack of work" related to the recess was denied by the Department of Labor. Although an administrative law judge had reversed the Department's decision, the Unemployment Insurance Appeal Board vacated the Administrative Law Judge's decision, holding, among other things, that Papapietro had received a reasonable assurance of employment after the recess and that, as a result, he was not entitled to the benefits he had applied for.

Papapietro appealed the Board's ruling and the Appellate Division held that the Board's interpretation of Labor Law §590(10) was inconsistent with the plain language of that provision's requiring a reasonable assurance of continued employment from an employer and reversed the Board's decision.

Citing Matter of Scott [Commissioner of Labor], 25 AD3d 939, the court said that "Pursuant to Labor Law §590(10), a claimant who is employed in an instructional capacity by an educational institution is precluded from receiving unemployment insurance benefits during 'any week commencing during an established and customary vacation period or holiday recess, not between such academic terms or years, provided the claimant performed services for such institution immediately before such vacation period or holiday recess and there is a reasonable assurance that the claimant will perform any services ... in the period immediately following such vacation period or holiday recess'" Despite the fact that the Legislature required an assurance in this regard, the court said that the Board had found that none was needed, while, in contrast, it has "long held" that an employer is required to  give an employee reasonable notice regarding his or her employment following a recess or a vacation.

In, the words of the Appellate Division, Third Department it "has repeatedly held that the interpretation of plain language in Labor Law §590(10) is a matter for resolution by the courts, not subject to deference in regard to the Board's interpretation" and has well-established precedent interpreting the identical phrase in Labor Law §590(10), "reasonable assurance," regarding two successive academic years or terms to require "a representation by the employer" as to future employment, which representation "often takes the form of a letter from an employer assuring a per diem substitute teacher of future employment opportunities."

Rochester had not sent any letter to Papapietro nor provided him with any other form of notice that made a representation regarding his continued employment after the recess. 

Finding that the Board's conclusion that the employer need not make any representation or provide any notice to an employee regarding the provision of services immediately following a recess or vacation to be inconsistent with the plain legislative requirement that the employer provide a reasonable assurance regarding such services, the Appellate Division reversed the Board's determination and remitted the matter to the Unemployment Insurance Appeal Board "for further proceedings not inconsistent with this Court's decision."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08596.htm

New York State Comptroller Thomas P. DiNapoli issued the following audits and examinations during the week ending December 9, 2017

New York State Comptroller Thomas P. DiNapoli issued the following audits and examinations during the week ending December 9, 2017

Click on text highlighted in color to access the full report

Department of Agriculture and Markets: Oversight of Weights and Measures Program (2016-S-98)

Auditors found systemic issues with the quality of data the department relies on to administer the state’s weights and measures program. Inaccuracies and system deficiencies were found in two critical databases. Such deficiencies diminish the department’s ability to conduct useful analyses and to provide meaningful information to the municipalities. Such information could potentially assist municipalities to focus their limited resources on areas of highest risk to consumers and producers. Site visits to seven municipalities also found most of them did not complete all their mandated annual inspections.

City University of New York (CUNY): Central Office: Controls Over Bank Accounts (2015-S-94)

Auditors found multiple internal control weaknesses related to CUNY’s use of bank accounts. These weaknesses impacted various aspects of the banking process, including: opening and properly authorizing accounts; making deposits to accounts; and ensuring all accounts are used for appropriate business purposes. These weaknesses increased the risk of fraud, waste or abuse from unauthorized bank accounts and expenditures. Auditors also found that as of June 30, 2016, CUNY’s Money Market balances of about $163 million were uninsured and uncollateralized beyond the Federal Deposit Insurance Corporation (FDIC) limit of $250,000.

City University of New York: Medgar Evers College (MEC): Controls Over Bank Accounts (Follow-Up) (2017-F-14)

An audit issued in June 2016, found weaknesses in the monitoring of bank accounts, which increase the risk that Medgar Evers College personnel could conduct transactions using unauthorized accounts. In a follow-up, auditors found MEC officials made progress in addressing the issues identified in the initial report. Both of the two prior audit recommendations were partially implemented.

State Education Department (SED): Advanced Therapeutic Concepts Inc., Compliance with the Reimbursable Cost Manual (2016-S-42)

For the three fiscal years ended June 30, 2015, auditors identified $181,938 in reported costs that did not comply with SED requirements and recommended such costs be disallowed. The ineligible costs consisted of $85,104 in personal service costs and $96,834 in other than personal service costs.

State Education Department: Oversight of School Fire Safety Compliance (2017-F-22) (Follow-Up)

An initial audit report, issued in August 2016, concluded that the department did not adequately monitor whether schools are in compliance with all fire safety regulations and accurately report violations. In a follow-up, auditors found SED has made significant progress in correcting the problems identified in the initial report. Of the four prior audit recommendations, two have been implemented and two recommendations have been partially implemented.

Division of State Police: Seized Assets Program (2017-F-21) (Follow-Up)

An initial audit report, which was issued in December 2014, covering the period April 1, 2011 through September 2013, concluded that the division did not properly account for or track seized assets. In a follow-up, auditors found the division has implemented the six recommendations identified in the prior audit report.

A salary reduction upon reassignment to another position in the course of an agency reorganization is not a disciplinary action requiring notice and hearing

A salary reduction upon reassignment to another position in the course of an agency reorganization is not a disciplinary action requiring notice and hearing

Matter of Soriano v Elia, 2017 NY Slip Op 08431, Appellate Division, Third Department

Supreme Court dismissed Charles R. Soriano's CPLR Article 78 petition seeking a review of the Commissioner of Education's dismissing Soriano's challenge to the reduction of his salary and benefits following his reassignment to another position.

Soriano served as the East Hampton Union Free School District's Assistant Superintendent. In 2012 the school board approved a reorganization plan for administrative staff within the school district that resulted in Sorian's being reassigned and appointed to Middle School Principal, a position within his tenure area. This change, however, entailed a reduction in his annual salary from approximately $205,000 to $180,000 in his new position. Although Soriano did not challenge the reassignment, he objected to any reduction in his salary or benefits as a consequence of this reassignment*.

Soriano appealed the school board's action to the Commissioner of Education contending that his annual compensation could not be unilaterally reduced by the school board except as "discipline" pursuant to the procedures set forth in Education Law §3020-a. The Commissioner dismissed the appeal, finding that Soriano "failed to demonstrate that the salary reduction constituted discipline under Education Law §3020-a or that the school board's actions were otherwise arbitrary and capricious.

The Appellate Division rejected Soriano's argument that, as a matter of law, the reduction in his salary resulting from his reassignment to Middle School Principal constituted  "discipline" within the meaning of §3020-a and such discipline could not be imposed without notice and hearing.

Noting that "Discipline" is not defined in the Education Law, the court said it must "construe [this] word of ordinary import with [its] usual and commonly understood meaning" and the term is uniformly defined, both in the legal and ordinary sense, as "punishment."

The Appellate Division concluded that the school board's actions with regard to Soriano's  compensation did not constitute discipline under the statute and the uncontradicted evidence submitted by the school board establishes that his reassignment was part of an overall reorganization of the school district's administrative staff and that his compensation was set after consideration of a number of factors, including the salaries being earned by other middle school principals in the surrounding area, salary reductions for other administrative positions within the school district, recent budgetary cuts and the overall financial constraints of the school district.

As there was no evidence to suggest that the reduction in Soriano's compensation was the product of any dissatisfaction with him or his job performance or was otherwise undertaken as a means of punishment, the Appellate Division held that the Commissioner properly concluded that Soriano was not entitled to the procedures set forth in §3020-a prior to the school board's setting his new compensation. Further, said the court, "Nor can we conclude that [Soriano] had a constitutionally protected property interest in the compensation he received while serving as Assistant Superintendent" while serving in his reassigned position.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08431.htm

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* Although both the term reassignment and the term transfer are used to describe this change, the term "reassignment" is more accurate in this instance. A movement of an individual from one position to a second position subject to the jurisdiction of the same appointing authority is typically described as a "reassignment." In contrast, the movement of an employee from one position to a second position under the jurisdiction of a different appointing authority is characterized as a "transfer."

That said, in the opinion of your editor this personnel change was neither a transfer nor a reassignment. Rather it appears to involve the abolishment of the position of Assistant Superintendent by the school board, resulting in Soriano's being laid off and the placement of his name on a preferred list. Soriano was then reinstated to the position of Middle School Principal, an then existing vacancy or a newly established position within his tenure area. Accordingly, his compensation upon such reinstatement should be determined accordingly.

Challenging an arbitration award

Challenging an arbitration award

2017 NY Slip Op 08382, Appellate Division, Second Department

A county employee [Petitioner] was served with disciplinary charges alleging misconduct for accessing unauthorized websites for non-County use and acting in an immoral manner during working hours, including viewing inappropriate material of a sexually explicit nature. Following a disciplinary hearing on these charges, the arbitrator found Petitioner guilty of misconduct and imposed a penalty of termination. Petitioner then initiated a CPLR Article 75 proceeding seeking to vacate the arbitration award.

Supreme Court dismissed the proceeding and confirmed the award. The Appellate Division sustained the lower courts ruling, explaining that judicial review of an arbitrator's award is extremely limited and the party seeking to vacate an arbitration award "bears a heavy burden[,]' and must establish a ground for vacatur by clear and convincing evidence."

Article 75 of the CPLR provides that an arbitration award may be vacated if the court finds that the rights of a party were prejudiced by (1) corruption, fraud, or misconduct in procuring the award; (2) partiality of an arbitrator; (3) the arbitrator exceeded his or her power; or (4) the arbitrator failed to follow the procedures mandated by Article 75.

In addition, in Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332, the Court of Appeals held that an arbitration award may be vacated by the court if it finds that arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power.

Finding that in Petitioner's case the arbitrator's determination was supported by evidence in the record, that nothing in the record indicates that the arbitrator exceeded a specifically enumerated limitation on the arbitrator's powers and that the arbitrator's decision was not irrational, the Appellate Division dismissed Petitioner's challenge to the Supreme Court's decision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08382.htm

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