New York's Adirondack Council's 2019-20 State of the Park report posted on the Internet

Subtitled Challenged by Success, New York's Adirondack Council's 2019-20 State of the Park report is posted on the Internet at https://www.adirondackcouncil.org/vs-uploads/sop_archive/1567097203_SOP_2019_2.pdf

Employee terminated for mishandling cash transactions

A City School District School Board [School Board] charged its cashier [Petitioner] with misconduct based on allegations that she failed to record various purchases of milk and juice by students as well as purchases of food by adults. In addition, she was charged with failing to account for "pre-identified bills."

Testimony was provided by Petitioner's co-workers, who had been instructed to observe her handling of "cash transactions" for a period of time by their supervisor. The Appellate Division said that this testimony, together with certain documentary evidence in the record of the disciplinary hearing, "provided the necessary substantial evidence to support the hearing officer's finding of misconduct and incompetency" and the adoption of  those findings by the School Board.

The Appellate Division also ruled that dismissal was not disproportionate to the offenses committed, citing the Pell standard. The Court said that "having violated her position as an employee entrusted with School District money, termination in all respects was proper."

An employee may claim that his or her theft of money from an employer was the result of a disability. If, indeed, the misconduct can be attributed to a disability in some degree, must the appointing authority refrain from disciplining the individual?

No, according to the Equal Employment Opportunity Commission, which opined that "an employer may discipline an employee with a disability for engaging in misconduct if it would take the same disciplinary action against an employee without a disability.*

Further, 8 FEP Manual 40-5.7259 indicates that "an employer does not have to excuse ... misconduct, even if the misconduct results from an impairment that rises to the level of a disability if it does not excuse similar misconduct from its other employees."

* See EEOC 915.002.

The decision is posted on the Internet at:

https://www.leagle.com/decision/19971076238ad2d8381281

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A Reasonable Disciplinary Penalty Under the Circumstances

Employer's personnel policy manual setting out reasons why an employee could be subject to dismissal does not constitute a "written contract" of employment

The Board of Trustees of the Library System [System] dismissed an employee [Plaintiff] from her position with the System. Plaintiff sued, contending that her termination constituted a breach in her contract of employment.

A New York State Supreme Court judge found that Plaintiff was an employee at will and dismissed her complaint. When Plaintiff appealed, the Appellate Division sustained the lower court's ruling, explaining that Plaintiff did not demonstrate that she had a written contract of employment with the System, much less that it had been breached.

While the Library System's "Personnel Policy and Procedure Manual set out a number of reasons why an employee could be terminated such as "unfitness, incompetence, and mental or physical disability, the Appellate Division concluded that this was not a "written contract of employment." Accordingly, the setting out of such reasons for termination in the policy manual "did not limit ... [the System's] right to discharge an employee at will to just and sufficient cause only."

The decision also notes that absent an agreement establishing employment for a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party.

Finding that Plaintiff was an employee at will and thus she could be terminated at any time, for any reason, except an unlawful reason, or for no reason whatsoever, the Appellate Division said Plaintiff's "complaint sounding in breach of contract and detrimental reliance was properly dismissed" by Supreme Court.

In contrast, as the Court of Appeals held in Antinore v State, 40 NY2d 6, where an individual is within the ambit of a statutory disciplinary procedure such as Civil Service Law §75 or §3020-a of the Education Law, or a contract disciplinary grievance procedure set out in a collective bargaining agreement, the employee is entitled to administrative due process.

In Antinore the Court explained that a union could bargain away the employee’s statutory disciplinary rights in favor of an alternative disciplinary procedure so long as the alternate procedure provided constitutional due process protections equivalent to those available under the statutory procedure that it replaced.

The decision is posted on the Internet at:

https://www.leagle.com/decision/1997611239ad2d3722272

Employer fined and held liable for lost wages and benefits for violating certain New York City's Earned Safe and Sick Time Act provisions

A law firm and its founding partner [Respondents] were charged with violating New York City's Earned Safe and Sick Time Act (“ESSTA”) when it terminated an employee allegedly for exercising his rights under ESSTA, required him to provide details of his medical condition, and failed to maintain "sufficient written sick leave policies."

New York City's Office of Administrative Trials and Hearings [OATH]  Administrative Law Judge Kevin F. Casey found that the employee’s use or attempted use of his sick time was one of the motivating factors for his firing and he did not credit the Respondent’s claim that the termination was for non-medical reasons.

Finding the firm’s founding partner and the law firm to be jointly liable for the violations, Judge Casey ordered the Respondents to pay a fine of $1,500 and $172,215.30 in relief to the former employee. 

The ALJ's decision, OATH Index No. 514/19, is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-514MD.pdf