Selected Links to featured Employment Law News items from WK Workday

Selected Links to featured Employment Law News items from WK Workday

Posted December 16, 2018

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Average hourly wage across a workweek is relevant unit for determining FLSA minimum wage violation

Premature to find NLRA preempted NYC car wash law before discovery on law’s interference with collective bargaining

San Francisco can’t sue DOJ over rescission of disability, national origin discrimination guidance

NLRB again extends comment period on joint-employer proposal, now to January 14

USCCR pushes for protections against discrimination based on sexual orientation, gender identity

Son had standing to bring retaliation claim based on father’s discrimination complaints against previous employer, but couldn’t show prospective employer knew of complaint

NLRB: Special remedies essential to ensure that employees may freely exercise Section 7 rights

Employee advances OT claims even though facial recognition system reflected 40 hours weekly

Employee fired after refusing to establish MMR immunity or get vaccine can’t revive ADA claims

An administrative determination made after a hearing will be sustained by the court if the decision is supported by substantial evidence

An administrative determination made after a hearing will be sustained by the court if the decision is supported by substantial evidence

DeStefano v Incorporated Vil. of Mineola, 2018 NY Slip Op 08481, Appellate Division, Second Department

Michael A. DeStefano, a member of the Volunteer Fire Department of the Incorporated Village of Mineola, was served with disciplinary charges alleging that he had violated certain provisions of the Fire Department's constitution and by-laws. Found guilty of the charges by the Fire Department's Fire Council [Fire Council], DeStefano membership in Fire Department was terminated.

DeStefano asked the Board of Trustees of the Incorporated Village of Mineola [Board] to review the Fire Council's determination. The Board of Trustees appointed a hearing officer, who conducted a hearing. Following the hearing, the hearing officer recommended that the Fire Council's findings of misconduct and the penalty of termination of DeStefano's membership in the Fire Department be sustained. The Board adopted the recommendation of the hearing officer.

DeStefano appealed the Board's decision by commencing a proceeding pursuant to CPLR Article 78 contending that the Board's determination "was made in violation of lawful procedure and was not supported by substantial evidence."* Supreme Court denied DeStefano's petition and dismissed the proceeding. DeStefano appealed the Supreme Court's ruling to the Appellate Division.

The Appellate Division, noting that as a matter of procedure Supreme Court should have transferred the proceeding to the Appellate Division but as the complete record "is now before this Court," held that it would treat the matter as one that has been transferred here and will review the determination de novo."

The court explained that with respect to judicial review of a determination rendered by an administrative body following a hearing, the Appellate Division's function "is limited to consideration of whether the determination is supported by substantial evidence." In this instance, said the Appellate Division, the Board's determination that DeStefano violated certain provisions of the Fire Department's constitution and its by-laws was supported by substantial evidence. Further, said the court, "... contrary to [DeStefano's] contention, certain members of the Fire Council were not required to disqualify themselves from acting on the disciplinary charges filed against him."

With respect to the penalty imposed, termination from the Fire Department, the Appellate Division noted that a court may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law." 

The Appellate Division said that it found that the penalty of dismissal imposed on DeStefano was "not so disproportionate to the offenses as to be shocking to one's sense of fairness," citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

The court then confirmed the Board's decision and dismissed DeStefano's appeal "on the merits."

* Substantial evidence it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt and "means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact [300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176].

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2018/2018_08481.htm

A public retirement system's denial of an application for retroactive membership in the System must be supported by substantial evidence

A public retirement system's denial of an application for retroactive membership in the System must be supported by substantial evidence

Sears v DiNapoli, 2018 NY Slip Op 08610, Appellate Division, Third Department

§803.a of the Retirement and Social Security Law [RSSL] addresses processing applications for retroactive membership in a public retirement system of New York State and provides, in pertinent part, that "A public retirement system shall have the authority to grant relief from a failure to file an application for membership in that system in connection with service rendered prior to April first, nineteen hundred ninety-three in accordance with the provisions of this [§803]."

Patricia Sears, a permanent employee of the Department of Taxation and Finance [T&F] from November 1977 until her retirement in July 2015 was enrolled in ERS as a Tier 3 member.  Prior thereto her permanent appointment in 1977, Sears had been employed by T&F as a seasonal employment on two occasions, initially from March 4, 1976 to June 30, 1976 and then again from January 6, 1977 until September 16, 1977. Prior to the commencement of her second temporary period of employment with T&F Sears signed a waiver dated December 28, 1976 acknowledging her right to join the Retirement System and elected not to do so.*

After RSSL §803 was enacted in 1993, Sears sought, but was denied, retroactive Tier 2 membership in ERS. Shortly before Sears retired in July 2015, she again sought to have her ERS membership in Tier 3 changed to a Tier 2 membership. Although ERS again denied Sears' request for Tier 2 membership, Sears challenged the decision via an administrative hearing and the Hearing Officer recommended Sears' application for retroactive Tier 2 membership be granted. The Comptroller rejected the Hearing Officer's recommendation and Sears filed an Article 78 petition challenging the Comptroller's determination.

The Appellate Division said the ERS conceded, and its review of the record confirms, that the underlying determination denying Sears' application to Tier 2 membership in ERS was not supported by substantial evidence. In words of the court, "As the Hearing Officer aptly observed, the waiver signed by [Sears] in December 1976 cannot be applied retroactively to encompass [Sears'] initial period of seasonal employment from March 1976 to June 1976, and Sears testified without contradiction that she was neither offered an opportunity to join nor declined membership in the Retirement System at that time."

The court explained that there was no information in Sears' personnel file regarding her membership options or opportunities when she was first hired in 1976, nor were there any current employees who could attest to the membership notification procedures that were in place when Sears was initially employed by T&F. Further, said the court, the documentary proof offered at the hearing was insufficient to establish, among other things, that Sears participated in a procedure that a reasonable person would recognize as an opportunity to join or decline membership in the Retirement System.

Accordingly, the Appellate Division annulled the Comptroller's determination, granted Sears application for retroactive Tier 2 status in ERS and remitted the matter to ERS "further proceedings not inconsistent with this Court's decision."

In contrast, see Schuyler v New York State & Local Employees' Retirement System at http://www.nycourts.gov/reporter/3dseries/2018/2018_00874.htm where the Appellate Division ruled that a "lack of documentation, coupled with information suggesting that petitioner's services were performed as an independent contractor rather than a state employee, supports the Comptroller's denial of petitioner's request for additional service credit."

* Frequently employees, other than employees in the Labor Class, eligible for membership in ERS but not required to become a member, declined becoming a member in order to avoid being required to make employee contributions to ERS and participating in Social Security. Employees in the Labor Class were required to participate in Social Security regardless of their membership in ERS.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08610.htm