Determining if an employer-employee relationship existed for the purposes of determining providing unemployment insurance coverage to an individual

Determining if an employer-employee relationship existed for the purposes of determining providing unemployment insurance coverage to an individual

Matter of New York State Sheriffs' Assn., Inc. (Commissioner of Labor), 2018 NY Slip Op 05644, Appellate Division, Third Department

New York State Sheriffs' Association, Inc. [Association] is a nonprofit trade organization that represents, provides training and offers legal resources for elected sheriffs in New York State. The Association also advocates on behalf New York State Sheriffs.

The Department of Labor issued an initial "audit determination" that assessed the Association for additional unemployment insurance contributions on behalf of two individuals who provided service to the Association; one in marketing and communication services, and a second who provided bookkeeping services. Following the affirmation of that finding by an Administrative Law Judge, which was ultimately sustained by the Unemployment Insurance Appeals Board, the Association appealed the Board's determination.

The Appellate Division affirmed the Board's determination explaining "[w]hether an employer-employee relationship exists is a question of fact, to be decided on the basis of evidence from which it can be found that the alleged employer exercises control over the results produced . . . or the means used to achieve the results." Further, said the court, "... no one factor is determinative and the determination of the . . . [B]oard, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion."

Here, said the court, both individuals were represented on the Association's website as staff members, and had email addresses and contact telephone numbers at the Association. They both were provided with office space, equipment and supplies, parking spots and the access code to enter the Association's offices.

With respect to the individual performing marketing and communication services, the decision notes that "she submitted a resume and was hired by the executive director of the Association, without a contract, to write the Association's weekly newsletter, maintain its website and social media information, and enlist vendors for the Association's biannual conference" among other duties. The Associationg provided her with business cards identifying her as the Association's marketing and communications manager and negotiated her rate of pay, as well as paid vacation. It paid her "in her personal capacity" and provided her with additional "employee benefits."

The individual providing bookkeeping service had been "the Association's bookkeeper for over 10 years," had been hired after submitting a resume in response to an advertisement by the Association, performed typical bookkeeper duties such as billing customers, paying bills, balanced accounts, wrote checks and processed the time records for the payroll. Although the bookkeeper "had a bookkeeping business," the Appellate Division noted that "he is no longer actively pursuing clients, no longer submits a business invoice to the Association for his services and is paid by the hour, biweekly through direct deposit to his personal account."

This, said the court, provides substantial evidence demonstrating that the Association retained overall control over important aspects of the services performed by these two workers "that they are employees, and the Department properly assessed the Association for additional unemployment insurance contributions.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_05644.htm

Positive drug test results rebutted as "false positive" by employee's expert witness

Positive drug test results rebutted as "false positive" by employee's expert witness

Office of Administrative Trials and Hearings, OATH Index No. 1717/18

A New York City correction officer who tested positive for morphine and codeine denied that he had used illegal drugs and claimed that the test result was a "false positive."

OATH Administrative Law Judge John B. Spooner found the officer's witness had rebutted the employer's allegation that the employee had tested positive as the result of having ingested unlawful drugs and he recommended dismissal of the charge. 

The ALJ credited the officer’s testimony that he had eaten bagels that contained poppy seed prior to the drug test. 

Judge Spooner found the qualifications of the officer’s expert, a toxicologist, were superior to those of petitioner’s expert, the lab manager. The toxicologist had testified that the relatively low levels of the drugs found in the officer’s urine could only be explained by eating poppy seed bagels because the quantities were at non-therapeutic doses and the relative proportions were inconsistent with heroin or morphine or codeine ingestion.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1717.pdf

SUNY student entititle to administrative due process in a disciplinary hearing involving allegations of violations of the student code of conduct

SUNY students entitled to administrative due process in a disciplinary hearing involving allegations of violations of a student code of conduct

Matter of Agudio v State Univ. of N.Y., 2018 NY Slip Op 05647, Appellate Division, Third Department

In this appeal to review a determination of the State University of New York at Albany [SUNY] that, following a Student Conduct Board [SCB] hearing, found the student petitioner [Petitioner] guilty of violating SUNY Albany's student code of conduct and expelled the student, the Appellate Division sustained the disciplinary action taken SUNY and the penalty imposed on the Petitioner.

The SCB found that Petitioner had found Petitioner guilty of three of the charges filed against her and imposed the sanction of dismissal from SUNY Albany. Petitioner appealed the SCB determination to an Appeal Board. Ultimately the SCB's determination and penalty was sustained by SUNY Albany's assistant vice-president for student affairs, based on a written recommendation from the Appeal Board.

The court  noted that a "college's determination that a student violated its code of conduct will be upheld if supported by substantial evidence in the record." Further, the decision notes that administrative determinations may be based entirely on hearsay evidence as long as "such evidence is sufficiently relevant and probative or sufficiently reliable and is not otherwise seriously controverted." Here, said the Appellate Division, "the record contains direct evidence against [Petitioner], as well as hearsay."

Although the disciplinary action before the SCB was held "in absentia" as the result of Petitioners failure to appear at the hearing,* the court ruled that Petitioner's due process rights were not violated by SUNY Albany's student disciplinary procedures as Petitioner was given written notice of the charges prior to a hearing, the names of the witnesses against her, an opportunity to hear and confront evidence against her and to present a defense and to be advised in writing of the factual findings and discipline imposed.

Additionally, citing Matter of Miller v Schwartz, 72 NY2d 869 and other decision, the Appellate Division noted that "there is no general constitutional right to discovery in . . . administrative proceedings."

Finally, under the circumstances of this case, the Appellate Division concluded that the penalty of dismissal from SUNY Albany imposed on Petitioner was not disproportionate to the offense, citing Lampert v State Univ. of N.Y. at Albany, 116 AD3d 1292, leave to appeal denied, 23 NY3d 908.

*The decision notes that Petitioner [1] had an attorney who communicated with SUNY Albany's Community Standards Office prior to the hearing raising certain complaints regarding the procedure and stated that Petitioner would not attend if those complaints were not remedied and [2] that Petitioner could have attended the hearing with her attorney, who could have advised her, but she did not do so.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_05647.htm

Implementing an arbitrator's decision after the appointing authority failed to timely comply with the provisions set out in a collective bargaining agreement

Implementing an arbitrator's decision after the appointing authority failed to timely comply with the provisions set out in a collective bargaining agreement

Appeal of Nadav Zeimer, Decisions of the Commissioner of Education, Decision No. 17468

The relevant provision of the collective bargaining agreement [COB] required the Chancellor of the New York City Department of Education [Chancellor] issue a written decision within 15 days of the employee's request that the Chancellor review the arbitrator's decision.

When the Chancellor failed to comply with this provision of the COB, Nadav Zeimer [Petitioner] requested that the Commissioner of Education [Commissioner] to “disregard the Chancellor's [d]ecision and consider [Petitioner’s appeal letter] a direct appeal of the Arbitration Decision.”

The Commissioner noted that the Chancellor had issued a determination addressing Petitioner’s December 5, 2017 appeal well after the 15 days required by both the CBA and an earlier order of the Commissioner set out in Appeal of Zeimer, 57 Ed Dept Rep, Decision No. 17,357.*  This, noted the Commissioner, is not the first time that the Chancellor has missed this deadline, citing Appeal of Chou, 55 Ed Dept Rep, Decision No. 16,848.**

In the words of the Commissioner, "The Chancellor’s unexplained delay is particularly egregious because the record shows that NYCDOE filed a proceeding under Article 75 of the Civil Practice Law and Rules (“CPLR”) contesting the arbitrator’s reinstatement of petitioner, and that this proceeding was fully submitted on April 27, 2018, six days prior to the Chancellor’s determination at issue herein, which was required to be timely rendered by the Agreement and by my March 26, 2018 decision and order in Appeal of Zeimer (57 Ed Dept Rep, Decision No. 17,357)."

After admonishing the Chancellor "to review the provisions of the Agreement and its legal obligation to ensure that the Chancellor renders a determination within 15 days of an arbitrator’s determination pursuant to Article VII(J)(4)(a)(6) of the Agreement," the Commissioner, nevertheless, declined to strike the Chancellor’s determination in this case. However, said the Commissioner, in view of tthe "the lack of demonstrated prejudice to [Petitioner] and in the interests of justice," she declined "to strike the Chancellor’s determination in this case." The Chancellor was then "cautioned" that future noncompliance may warrant additional corrective measures.

* The Commissioner took judicial notice that at the time Petitioner initiated Appeal of Zeimer, 57 Ed Dept Rep, Decision No. 17,357, the Chancellor was Carmen Fariña.  The instant Chancellor is Richard A. Carranza.

** Indeed, observed the Commissioner, the Chancellor cited Appeal of Chou "for the proposition that 'the Commissioner previously authorized a decision by the Chancellor despite the delay in its issuance' to support consideration of the Chancellor’s late determination" in the instant appeal. 

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume58/d17468