Recently posted on the Internet

AELE Monthly Law Journal

Public Safety Employee Right to "Name-Clearing" Hearings

View at http://www.aele.org/law/2018all11/2018-11MLJ201.pdf

Fire, Police & Corrections Personnel Reporter

This issue has cases on age discrimination, arbitration procedures, collective bargaining, Fair Labor Standards Act: overtime in general, handicap/abilities discrimination: in general, handicap/abilities discrimination: “regarded as” disabled, retaliatory personnel actions, and union activity. View at: http://www.aele.org/law/2018all11/FP2018NOV.html

Disciplinary probation

Disciplinary probation

Reillo v New York State Thruway Auth., 2018 NY Slip Op 02170, Appellate Division, Second Department

New York State Thruway Authority employee Anthony Reillo was served with  disciplinary charges alleging certain misconduct.

Reillo and the Thruway Authority then entered into a stipulation settling the disciplinary action whereby Reillo agreed to a one-year period of "disciplinary probation" which provided that the Thruway Authority could summarily terminate Reillo from his employment for any similar act or acts of misconduct. 

In addition, settlement stipulation provided that the determination that Reillo had engaged in such misconduct was to be at the sole discretion of the Thruway Authority.

In February 2016, the Thruway Authority terminated Reillo's employment based on incidents that occurred while he was still serving as a  disciplinary probationer. Reillo file an Article 78 petition seeking a court order directing the Thruway Authority to reinstate him to his former position with back salary.

Supreme Court denied the petition and dismissed the proceeding on procedural grounds, finding that Reillo failed to serve the notice of petition on the Attorney General as required by CPLR §7804(c). Reillo appealed but the Appellate Division affirmed the Supreme Court's determination.

CPLR §7804(c) provides that when a CPLR Article 78 proceeding is commenced against a "state body or officers" by a notice of petition, the notice of petition must be served upon the Attorney General. Following a "particularized inquiry" into the nature of the Thruway Authority and the statute claimed to be applicable to it, the Appellate Division concluded  that the Thruway Authority is a "state body" for the purposes of CPLR §7804(c). Thus, said the court, as the Attorney General had not been timely served, Supreme Court properly dismissed Reillo's petition.

Although the merits of Reillo termination was not considered in this action, it should be noted that frequently a settlement of a disciplinary action provides for the employee to serve a disciplinary probationary period and, as in Reillo, the individual is subject to being summarily terminated "without notice and hearing" if he or she violates the terms or conditions of his or her "disciplinary probation" settlement.

If, however, an employee is to be dismissed for violating the conditions of the disciplinary probation, the appointing authority must to make certain that the actions, or omissions, cited for triggering the termination of the employee serving the disciplinary probationary period do indeed violate the specific terms or conditions enumerated in the disciplinary settlement agreement as the decision in Taylor v Cass, 122 AD2d 885, demonstrates.

Taylor, a Suffolk County employee, won reinstatement with full retroactive salary and contract benefits after he was summarily, and as was ultimately determined, improperly, dismissed from his position while serving a disciplinary probation period.

In Taylor's case the terms of the disciplinary probation provided that Taylor could be terminated without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job during the next six months." Taylor was subsequently terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.”

The Appellate Division said the dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement of the disciplinary action agreement: intoxication on the job.

As the court noted in  Matter of Sepulveda, 123 AD2d 703, even employees who would otherwise be entitled to the benefits of Section 75 of the Civil Service Law or a similar statute, an employee's agreement to be placed on probation pursuant to terms set out in a settlement of a disciplinary action agreement sacrifices the notice and hearing requirements that would otherwise be available to the employee by such statute for the duration of his or her disciplinary probationary period.

Additionally, it is good practice make certain that the employee’s acceptance of disciplinary probation is set out in settlement of the disciplinary action agreement is made openly, knowingly and voluntarily and be memorialized to that effect in the written agreement signed by the parties.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02170.htm

Challenging a hearing officer's determination following a §3020-a disciplinary hearing

Challenging a hearing officer's determination following a §3020-a disciplinary hearing

Appeal of Douglas S. White, Decisions of the Commissioner of Education, Decision No. 17,521

Douglas S. White submitted an Education Law §3020-a hearing officer's decision finding him guilty of 6 of 7 specifications set out in two Charges filed against him by the Roosevelt Union Free School District Board of Education [Roosevelt] and the penalty imposed by the Arbitrator, suspension without pay for 42 school days, to the Appellate Division for judicial review.

The Appellate Division vacated portions of the hearing officer’s findings and remanded the matter to the hearing officer for a review and determination of the penalty to be imposed on White in consideration to the court's decision in the matter.*

The hearing officer, in consideration of the Appellate Division's decision, reduced the penalty to be imposed on White. White thereupon appealed the reduced penalty to the Commissioner of Education, contending, among other things, that the hearing officer erred by imposing a penalty upon on remand. 

Roosevelt challenged White's appeal, contending that it must be dismissed because [1] White failed to make proper service of his appeal; [2] the Commissioner lacked jurisdiction to consider White's appeal; and [3] White's appeal had been untimely filed.

Citing 8 NYCRR 275.8(a), the Commissioner said that the appeal must be dismissed for improper service, explaining that the Commissioner’s regulations requires that [1] the petition be personally served upon each named respondent and [2] if a school district is named as a respondent, service upon the school district is to 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."

Turning to Roosevelt's claim that the Commissioner "lacked jurisdiction to review the decision of a hearing officer in a §3020-a proceeding," the Commissioner noted that Education Law §3020-a was amended by Chapter 691 of the Laws of 1994 to divest the Commissioner of jurisdiction to review determinations of hearing officers, both final and non-final.

Addressing Roosevelt's argument claiming "untimeliness," the Commissioner said that "[w]eighing the parties’ submissions," she found that Roosevelt had met its burden of proving its affirmative defense that service was improper and that White failed to rebut the evidence provided by Roosevelt with respect to its claim of the lack of proper service.

Finally, the Commissioner noted that the only relief sought by White in this appeal is that "the charges be overturned and expunged from his record and that he be awarded reimbursement for his expenses resulting from the charges, including attorneys’ fees and lost wages." However, explained the Commissioner, "...  even if [White's] appeal had been properly served, it would be dismissed as [the Commissioner of Education has] no jurisdiction over [White's] claims and lack the authority to grant the relief sought."

* See White v Roosevelt Union Free Sch. Dist. Bd. of Educ., 147 AD3d 1071, posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2017/2017_01371.htm

The Commission's decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume58/d17521

Reinstatement to a position in the classified service following appointment to a position in the unclassified service with the State University of New York

Reinstatement of an individual to a position in the classified service following his or her appointment to a position in the unclassified service with the State University of New York

Question: May an individual with permanent status who resigned from a position in the competitive class of the Classified Service to accept a position with the State University of New York in the Unclassified Service* be reinstated to a position in the competitive class following his or her separation from his or her State University of New York position in the Unclassified Service?

Response: In NYPPL's editor's opinion, the rules applicable in such a situation** are as follows:

1. An employee who resigns from his or her permanent appointment then serving in a position in the competitive class to accept a position with the State University of New York in the Unclassified Service is eligible for reinstatement:

a. With his or her former agency in the same position, or in a similar or lower grade position, except that such a reinstatement cannot be made in the face of [i] a special military list established pursuant to §243.11 of the Military Law;*** or [ii] a preferred list.

b. A different department or agency in the same title and grade, or in a similar or lower grade position, except that such a reinstatement cannot be made in the face of [i] a special military list; [ii] a preferred list; [iii] a "department or agency" promotion list; or [iv] an existing promotion field in that department or agency.

2. For the purposes of reinstatement and similar personnel rights and considerations, service in the classified service is not deemed to be a "break in service" by reason of an intervening unclassified service employment.

* See also, §355-a.10 of the Education Law, "Salary, status, and accumulated leave credits of employees whose employment changes as between the classified and the unclassified service," for additional provisions of law applicable to incumbents of positions in the State University upon the jurisdictional reclassification of his or her position. 

**N.B.  Note 4 NYCRR 5.4, RULES FOR THE CLASSIFIED SERVICE, provides as follows:

A permanent employee who has resigned from his position may be reinstated, without examination, within one year from the date of such resignation in the position from which he resigned, if then vacant, or in any vacant position to which he was eligible for transfer or reassignment. In computing the one-year period within which a person may be reinstated after resignation, the day the resignation takes effect, any time spent in active service in the military or naval forces of the United States or of the State of New York, and any time served in another position in the civil service of the same governmental jurisdiction shall not be counted. In an exceptional case, the commission may, for good cause shown and where the interests of the government would be served, waive the provisions of this section to permit the reinstatement of a person to his former position more than one year after resignation. For the purpose of this section, where an employee on leave of absence resigns, such resignation shall be deemed effective as of the date of the commencement of such leave.

*** Persons not covered by the provisions of §243.11 may be entitled to have their names placed on a "military reemployment list" pursuant to §243.12 of the Military Law.        

Election Workers: Payroll Reporting and Withholding

Election Workers: Payroll Reporting and Withholding 

Source: Internal Revenue Service

Click on text highlighted in color to access the full report

Each election year, state and local government entities hire temporary workers to conduct primary and general elections. Election workers are subject to unique reporting and withholding requirements and may be coveredby a Section 218 Agreement.

IRS Videos available

Watch the latest presentations made for federal, state and local governments.

Payroll Reporting for Election Workers Learn about reporting and withholding requirements that apply to paid election workers.

Why File Form 1099-MISC Learn about the basic filing requirements for reporting payments on Form 1099-MISC.

Taxpayer Identification Number (TIN) Matching Program Use TIN Matching to validate whether the TIN and name combinations provided on Forms W-9 match IRS tax filing records prior to submitting related information returns.

10 Minutes on Reconciling Forms 941/W-3/W-2 to Gross Payroll Employers who reconcile payroll can avoid discrepancies by ensuring that employees’ wages and taxes reported to the IRS and the Social Security Administration match.

Find these presentations and more on the IRS Video Portal.

Employee privacy and expectations of privacy in the electronic age

Employee privacy and expectations of privacy in the electronic age

Does your organization have a policy concerning the use of its computer equipment? Has it addressed the use of E-mail by employees for personal communications?  Has it distributed copies of these policies to the staff?

The expectations of employees concerning E-mail privacy and the privacy of other material stored or sent on an employer's computer equipment for personal reasons is becoming a significant issue. The topic has been placed on the table in the course of collective bargaining while elsewhere employers have unilaterally adopted policies.

It would seem prudent for an employer to have a policy in place limiting or prohibiting the use of employer E-mail programs by a staff member for personal business. Some have suggested that without such a policy in place an employer could be exposed to claims of invasion of privacy if it reads E-mail records or the employee's "personal files" stored in the employer's computer.

On the other hand, complaints could arise alleging libel or unlawful discrimination resulting from an individual's using the employer's computer equipment. Some have observer that sending out an E-mail with a return address like  from "JSmith[at symbol]XYZagency.gov" is much like sending out a letter on government letterhead. 

What should be set out in such a  policy?

At a minimum the employees should be told that the use of  the "employer's E-mail program is limited to "department or agency business" and that they should not expect any "privacy" with respect to any information, personal or private business related, received, transmitted or stored electronically on the employer's computers.

The Society for Human Resource Management has recommended that employees be required to acknowledge in writing that they have been advised of the employer's computer/E-mail policies.

The following is adopted from the Society's model statement concerning the use of company equipment and the employer's E-mail capability by employees for personal purposes:

I, [name of employee], am aware and agree that, regardless of its source, [name of the employer] has, and may exercise, its rights to review, intercept, access, record, use and disclose all E-mail correspondence as well as all files and records in its computer system at any time, with or without any notice to employees, or the consent of any employee. I also understand that I have no right to expect any privacy with respect to any material I send, receive, place or retain in or through the [name of employer]'s computer system, including, but not limited to, E-mail sent to or received by me from a coworker or from an another individual or organization. I also understand and agree that the use of any office equipment, including any E-mail capability, in violation of this policy may  result in disciplinary action being taken against me.

A number of law suits have been filed against employers alleging that offensive, discriminatory or libelous communications concerning an individual, was created, transmitted or circulated by employees using the employer's electronic data processing equipment. For example, in Strauss v Microsoft Corporation [USDC SDNY, 91 Civ 5928], a federal district court allowed a former Microsoft employee,  Karen  Strauss, to introduce E-mail messages between Microsoft workers as evidence of sexual harassment.

Other means of communicating the employer's policy to staff include having a copy of the statement printed in the employer's "employee handbook"; posting a copy of the policy on all employee bulletin boards; and having a "reminder" greet the computer user each time he or she activates a computer terminal or desktop computer. It may also be advisable to periodically circulate a copy of the policy to all staff members or from time to time attach a copy of the policy to the employees' paycheck.

Once a policy is established, the employer should adopt procedures, and designate the individuals, to implement it and, in addition, periodically review it in order to "keep it current."

On a related issue, does your organization have a policy prohibiting employees from "electronically sabotaging" the work of another staff member or the company's database? This may become an increasing important concern as more and more work is performed electronically.

The New York State Department of Education's State Archives and Records Administration has published a booklet Managing Records in E-Mail Systems. The booklet includes a sample E-mail policy as well as suggestions concerning "E-mail etiquette." For a free copy of the booklet, write to the State Records Advisory Services, 9C71 Cultural Center, Albany, New York, 12230 [518-474-6771].

Employers also should be familiar with the provisions of the Electronic Communications Protection Act of 1986 and the federal Wiretap Act which set out a number of standards dealing with employee privacy in the workplace.