Napping during work hours

The appointing authority filed disciplinary charges alleging that an employee [1] failed to make required patrol checks at the work site and falsely reported that he performed the required checks on his screen station log sheet and [2] neglect of duty by sleeping in his car during his shift time, such acts or omissions being in violation of the Department’s Uniform Code of Discipline.

OATH Administrative Law Judge Joycelyn McGeachy-Kuls found the facility manager credibly testified that it was the practice to fill out the log sheet at the end of the shift and that he believed that the worker completed his checks at the required time.

Further, the ALJ concluded that the manager corroborated the worker’s testimony that he was on meal break and not required to be working when he was found sleeping in his car. It was not disputed that the employee was not required to perform work during their meal breaks even though they are paid during this break time. Credible testimony established that the employee was only required to keep his radios with him and stay on facility premises during the meal break. The ALJ found that the appointing authority has produced no evidence to establish that resting or even dozing off briefly during the meal break is prohibited or rendered the employee incompetent to perform his job.

Judge McGeachy-Kuls found that the appointing authority failed to establish that the employee engaged in the charged misconduct and recommended dismissal of the charges.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1451.pdf

New York courts lack subject matter jurisdiction to consider lawsuits involving disputes between and among rival factions of the Cayuga Nation

Certain members of the Cayuga Nation* [Petitioners] constituting one faction claiming authority to act on behalf of the Nation commenced this action, purportedly on behalf of the Nation, against certain individuals comprising a rival faction [Defendants] claiming similar authority.

To resolve these claims, said the Court of Appeals, New York courts would have to decide whether Defendants were, at various times, or remain legitimate leaders of the tribe, a question that turns on disputed issues of tribal law that are not cognizable in the courts of this state given the Nation's exclusive authority over its internal affairs.

Although Plaintiffs claimed otherwise, the court held that despite a limited recognition determination issued by the Federal Bureau of Indian Affairs [BIA] that recognized the Plaintiff faction as the tribal government for the purpose of distributing federal funds, it held that New York courts lack subject matter jurisdiction to consider this dispute, noting that The Nation relies on "the Council itself" and not any "written law, court, or body other than the Council . . . for resolving disputes that arise within the Council."

Noting that "Supreme Court reasoned that it lacked jurisdiction over the claims before it because 'the underlying allegations . . . are fundamentally founded upon the longstanding question of who has the right to lead the Nation' it could not adjudicate the dispute without interfering with tribal sovereignty and self[-]government'" and that the BIA urged the Nation to resolve the leadership dispute internally," reversed the order of the Appellate Division, with costs, "granted the motion to dismiss the complaint, and the certified question answered in the negative."

Opinion by Judge Feinman. Chief Judge DiFiore and Judges Rivera and Stein concur. Judge Garcia dissents in an opinion. Judge Wilson dissents in a separate dissenting opinion. Judge Fahey took no part.

*Footnote 1 in the court's decision states: "The Cayuga Nation is one of "[t]he [Six Nations of the Iroquois] Confederacy, or the Haudenosaunee' [People of the Longhouse], which refers to the historical alliance between the Mohawk, Oneida, Onondaga, Cayuga, Seneca, and Tuscarora Nations."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07711.htm

Publication of the findings made, and penalty recommended, after a disciplinary hearing by a New York City Office of Trials and Hearings Administrative Law Judge

At the close of a §75 disciplinary hearing held before the New York City Office of Trials and Hearings, the employee, a correction officer, moved to prohibit publication of the OATH Administrative Law Judge's report of findings and recommendation with respect to the penalty to be imposed, citing to §50-a of the Civil Rights Law. The correction officer contended that §50-a requires personnel records under the control of the Department of Correction be kept confidential.

OATH Administrative Law Judge Kevin F. Casey denied the correction officer's motion as untimely.

In addition, Judge Casey explained that [1] because OATH, as an autonomous agency and independent tribunal, its records are not under the control of Department of Correction and [2] the correction officer failed to overcome the broad presumption under the First Amendment in favor of public access to OATH proceedings.

The ALJ's ruling cites Matter of Victor v New York City Off. of Trials & Hearings, 174 AD3d 455, in which the Appellate Division held that Victor's claim that a disciplinary report and recommendation issued as the result of an OATH disciplinary hearing is confidential under Civil Rights Law §50-a was moot, explaining that "[f]or several years, the report has been publicly available from multiple sources, including the OATH and LEXIS websites" and as the court "cannot afford petitioner any meaningful relief," it dismissed Victor's appeal.

The decision is posted on the Internet at: 
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1663md.pdf.

______________

The Discipline Book

A concise guide to disciplinary actions involving public officers and employees in New York State. For more information click on http://booklocker.com/books/5215.html

______________

Human Rights Law as applied to independent contractors and immigrants.

Source: Jackson Lewis Newsletters 

New York City enacts legislation clarifying independent contractor protection under Human Rights Law

While courts have generally interpreted the New York City Human Rights Law as providing anti-discrimination protections to individuals performing services as independent contractors, effective in January 2020, amendments to the New York City Human Rights Law clarify such protections. Read full article ►

New York City issues new enforcement guidance on discrimination based on national origin, immigrant status

Continuing its pattern of issuing enforcement guidance on areas on which it focuses, the New York City Commission on Human Rights has released guidance reiterating the obligations of most employers, housing providers, and providers of public accommodations in New York City to avoid discrimination based on national origin and immigration status. Read full article ►

Dismissal during a probationary period

As a general rule, an individual appointed to a position on a permanent basis attains such status on the effective date of such "permanent appointment" but does not attain tenure in the position until [1] he or she satisfactorily completes his or her maximum period of probation or [2] by estoppel, acquisition, default, or otherwise by operation of law or [3] as the result of the appointing authority's lawfully truncating the individual's maximum period of probation. In addition, tenure may be acquired in consideration of certain military service performed during a probationary period or by other lawful process.

York v McGuire, 63 NY2d 760, sets out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

This limitation on summarily dismissing a probationary employee during the minimum probationary period is to provide the individual a minimum period of time to demonstrate his or her ability to satisfactorily perform the duties of the position. In contrast, should the appointing authority elect to terminate a probationary employee before he or she has completed the required minimum period of probation, the individual is entitled to administrative due process, i.e., "notice and hearing," otherwise to be accorded a "tenured employee."

Supreme Court denied the petition the filed the Plaintiff seeking to annul her former employer's [Respondent] determination terminating her probationary employment for unsatisfactory performance of her duties effective June 27, 2016 and granted Respondents' cross motion to dismiss the proceeding brought pursuant to CPLR article 78. Plaintiff appealed the Supreme Court's decision.

Affirming the lower court's ruling, the Appellate Division explained that Plaintiff's Article 78 petition was untimely as she had been terminated effective June 27, 2016 and she had until  October 27, 2016 to challenge Respondents' determination, but did not commence her Article 78 proceeding until June 16, 2017.*

Citing Kahn v New York Dept. of Education, 18 NY3d 457, the Appellate Division rejected the Petitioner's argument that the statute of limitations applicable to initiating a CPLR Article 78 action "was tolled  until the criminal charges against her were dismissed" as unavailing. Further, opined the court, Petitioner's failure to timely notify her Employer of her arrest, a violation of Employer's regulations, constituted a good faith basis for terminating her employment.

* The Appellate Division noted that the record shows that Petitioner was dismissed due to an unsatisfactory performance rating and because of her failure to immediately notify her supervisor of her arrest rather than because of the arrest itself, as she claims.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07321.htm

___________________________

The Discipline Book 

A concise guide to disciplinary actions involving public officers and employees in New York State. For more information click on http://booklocker.com/books/5215.html

___________________________

Fracking in New York State: weighing risks and benefits

Below an abstract of an article by Dr. Robert Michaels [corresponding  author,  bam@ramtrac.com] and Dr. Randy W. Simon published in the Environmental Claims Journal.  The full text of the article can be downloaded from ResearchGate.net at no charge via the following URL:   

https://www.researchgate.net/publication/336533285_Fracking_in_New_York_State_Weighing_Risks_and_Benefits

Abstract*

The controversial decision to ban fracking in New York State, most notably in the Marcellus Shale formation, was informed by global, national, state, and local issues that have general relevance. Without prejudging whether fracking can be undertaken safely, we discuss the science of fracking, focusing primarily on widely reported public health and environmental risks, especially those associated with greenhouse gas emissions. Based upon such concerns, any reconsideration of the fracking ban in New York should include, at a minimum, consideration of imposing public and environmental health risk management requirements as proven feasible and successful via industry experience. Fracking should be viewed as one choice among alternative energy strategies, all of which pose risks, rather than simplistically classified as either safe or unsafe. Assuming that our energy needs will continue to grow, our goal should be to guide the evolution of our energy portfolio toward sustainable sources as they emerge as feasible energy alternatives.

* Michaels, Robert A; and Randy W. Simon.  Fracking in New York State:  weighing risks and benefits.  Environmental Claims Journal, 29(4), 253-68, Fall 2017; doi  10.1080/10406026.2017.1372392; online 27 November 2017.

How to prevent job loss in the public sector

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