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 January 2, 2018

Click on text highlighted in color to access the full report

Employee PIP’d, then RIF’d, after ending consensual affair advances quid pro quo harassment claim

Incentive portions of EEOC wellness regs vacated but effective date delayed until 2019

Suit challenges Facebook, employers using features that may hide job opportunities from older workers

Union's duty of fair representation

Union's duty of fair representation

Okpo v City of New York, 2017 NY Slip Op 09272, Appellate Division, First Department

In the words of the Appellate Division, "[t]he nature and purpose of the duty of fair representation — representation in collective bargaining grievances — thus does not support expansion of the duty to cover article 78 proceedings."*

Pauline Okpo, a probationary employee, was terminated from her position and filed a grievance objecting to her dismissal. The union declined to challenging Okpo's dismissal and Okpo initiated an Article 78 in Supreme Court. Supreme Court granted the union's motion for summary judgment and dismissed Okpo's complaint.

The Appellate Division unanimously affirmed the Supreme Court's ruling, explaining:

1. As a probationary employee, Okpo's termination was not the basis for a "grievance" under the controlling collective bargaining agreement [CBA]. Accordingly, the employee organization had no duty of fair representation with respect to Okpo's challenging her termination during her probationary period:

2. Assuming that the employee organization did, in fact, owed Okpo a duty of fair representation, it would nonetheless have had no duty to initiate a CPLR Article 78 proceeding on her behalf challenging her termination while serving as a probationary employee as "[t]he duty of fair representation is rooted in the bargaining agent's exclusive statutory authority to pursue grievances on behalf of covered employees under the CBA"; and

3. The nature and purpose of the duty of fair representation — representation in collective bargaining grievances and such a duty does not support expansion of the duty to cover Article 78 proceedings.

In contrast, the Appellate Division pointed out that as a probationary employee, however, Okpo could have challenged her termination herself in an Article 78 proceeding (see e.g. Matter of Castro v Schriro, 140 AD3d 644, affd29NY3d 1005).

* Typically litigation arising involving collective bargaining grievances would be prosecuted pursuant to Article 75 of the Civil Practice Law and Rules.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_09272.htm

New York State Comptroller Thomas P. DiNapoli issued the following audits and examinations during the week ending December 29, 2017

New York State Comptroller Thomas P. DiNapoli issued the following audits and examinations during the week ending December 29, 2017

Click on text highlighted in color to access the full report

On December 28, 2017, New York State Comptroller Thomas P. DiNapoli announced the following audits and examinations had been issued:

City University of New York: Lehman College, Controls Over Bank Accounts (2017-F-18) (Follow-Up)

An initial audit issued in April 2016 found two accounts that were not on CUNY Central’s list that Lehman opened prior to the implementation of its 2008 banking policy. In addition, of 72 payments from five judgmentally selected bank accounts, 25 totaling $114,554 were either improper or were unsupported. Auditors also found that a non-tax levy account contained tax levy dollars that Lehman should have turned over to the state. In a follow-up, auditors found Lehman officials had made progress in addressing the issues identified in the initial report.

State Education Department (SED): Birch Family Services Inc.: Compliance with the Reimbursable Cost Manual (2016-S-74)

Birch 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 years. For the two fiscal years ended June 30, 2013, auditors identified $1,376,319 in reported costs that did not comply with the RCM’s requirements, including: $605,667 in compensation paid to employees who did not work for Birch’s SED preschool cost-based programs.

Department of Health (DOH): Optimizing Medicaid Drug Rebates (2017-F-9) (Follow-Up)

An initial audit determined DOH had overlooked multiple sources of drug rebate revenue and did not collect an estimated $95.1 million in available rebates during the audit period. In a follow-up, auditors found DOH made progress in addressing the problems identified in the initial audit report; however, further actions are still needed.

Office of Information Technology Services (ITS): Effectiveness of the Information Technology Transformation (2017-F-19) (Follow-Up)

An initial audit report issued in August 2016 covering the period of January 22, 2015 to March 20, 2016, determined there were significant deficiencies in planning the execution of the state’s Information Technology Transformation, with little to no evidence that basic planning steps were performed. In a follow-up, auditors found ITS officials have made progress in correcting the problems identified in the initial report.  Of the four prior audit recommendations, two recommendations have been implemented and two recommendations have been partially implemented.

Office for People with Developmental Disabilities: Lifespire Inc. Compliance with the Consolidated Fiscal Reporting and Claiming Manual for Non-Medicaid Costs (2016-S-2)

Lifespire provides assistance to individuals with mental developmental disabilities. Lifespire operates 118 residences and offers 75 day programs in areas such as habilitation, supported employment, and residential, behavioral, prevocational, mental health, and family support. For the two fiscal years ended June 30, 2015, auditors identified $167,041 in costs claimed for state reimbursement that did not comply with requirements and recommend such costs be disallowed. The ineligible costs consisted of $70,129 in personal service costs and $96,912 in other than personal service costs.