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

Click here to Read a FREE excerpt from NYPER's

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

Violating New York City's Earned Safe and Sick Time Act (“ESSTA”) results in a fine and the payment of damages to the employee

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

Legacy Contaminants of Emerging Concern: Lead (Pb), Flint (MI), and Human Health

Source:  This article by Robert A. Michaels, PhD, CEP was published online by the Environmental Claims Journal.  The full text of this article is available at no charge at:

https://www.researchgate.net/publication/335432817_Legacy_Contaminants_of_Emerging_Concern_Lead_Pb_Flint_MI_and_Human_Health_published_online_12_September_2019_print_expected_January_2020.    

ABSTRACT

As a heavy metal industrially mined for millenia, lead (Pb) is a legacy contaminant. It is also a contaminant of emerging concern because of its persistence, toxicity, and recent discovery of its resurgence in drinking water serving homes and schools, recently and most notoriously in Flint, Michigan. Concern about lead, however, has reemerged beyond Flint, exemplifying adoption of bad science policy despite availability of relevant good science. Much is known about lead toxicity, and profiled here. Whereas adults chronically exposed to lead may experience peripheral neuropathy, infants and children are more susceptible. They constitute sensitive subpopulations because their blood-brain barriers are immature, making them susceptible to central nervous system effects, most notably reduced IQ, when lead penetrates to developing brains. Failure to protect disadvantaged populations in Flint and beyond despite availability of proven science and inexpensive technology also exemplifies instances of environmental injustice. Emerging concern about lead thus illustrates failure of social as well as science policy. A critical lesson to be learned is that vigilance must be maintained, as knowledge about lead exposure and toxic effects provided by science does not automatically result in consistent and evenhanded legal and regulatory protection provided by government.

Contact Dr. Michaels via e-mail at ram@ramtrac.com.

Direct dealings with members in a negotiating unit

"Direct dealing" involves an employer establishing or attempting to establish a negotiating relationship with one or more unit members to the exclusion of the employees' exclusive bargaining agent.

In Local 650 and the City of Buffalo, 30 PERB 3020, PERB decided that the City of Buffalo had not engaged in "direct dealing," but PERB concluded that the city had unlawfully interfered with an employee's statutory right to representation.

A part-time administrative program aide, [Aide] was initially hired  and scheduled to work from 10 a.m. until 3 p.m. Her supervisor allowed her some flexibility, but a dispute eventually arose about her hours. The City eventually abolished the Aide's position and terminated her.

PERB found that the record demonstrates that Aide would not have been terminated nor her position abolished had the Local agreed to her starting at 10 a.m. Indeed, PERB's decision reports that the City admitted that Aide was terminated "because [the Local's] proposals on her behalf in negotiations regarding work schedule were 'unacceptable' to the City."

PERB decided that Aide's termination violated §209-a.1(a) of the Civil Service Law [the Taylor Law] regardless of whether her work schedule was a mandatory or non-mandatory subject of negotiations, explaining that the City's action violated Aide's right to have union representation within the meaning of §202 of the Taylor Law.

It seems clear that an employer does not have a legal duty to negotiate with a union if a subject matter proposed for discussion is non-mandatory. But the absence of a legal duty to bargain does not mean that the employer is allowed to take action against an employee because of the nature of  the help extended to that employee by the union. Simply put, PERB held that Buffalo based its action on an impermissible reason.

The City could have taken action against Aide for not complying for its directive regarding her reporting to work. But it could not lawfully terminate her simply because the local had pursued a negotiating position that the City considered impossible.

PERB ordered the City to recreate Aide's former position and reinstate her to it, with back salary and benefits.