Determining if a workers' compensation benefit claimant is eligible for a reduced earnings award

In 2008 a claimant [Appellant] for workers' compensation benefits established his eligibility for benefits as a result of a work-related injury. In September 2017, Appellant retired and claimed that his retirement was, at least in part, due to his 2008 injury. The employer contested Appellant's claim for benefits, contending that Appellant's retirement was voluntary and not causally related to his disability.

Ultimately a Workers' Compensation Law Judge [WCLJ] found that Appellant's retirement was not due to his compensable disability, but that Appellant "had reattached himself to the labor market by obtaining part-time employment in November 2018. The WCLJ directed Appellantto produce records of his wages in order to determine his possible eligibility for "a reduced earningsclaim."* The employer appealed the WCLJ's ruling.

The Workers' Compensation Board [Board] modified the WCLJ's decision, finding that the record "was devoid of any credible evidence of a nexus between work-related back injury" and Appellant'salleged reduced earnings and thus he was not entitled to a reduced earnings award. 

The Board also rejected Appellant'srebuttal to the employer's appeal, in which he argued that his retirement was involuntary. The Board rejected the rebuttal on the grounds Appellant failed to file a timely appeal from the WCLJ's decision.

The Appellate Division sustained the Board's ruling, explaining:

1. A claimant who has voluntarily retired, but claims to have later "reattached to the labor market," has the burden of demonstrating "that his or her earning capacity and his or her ability to secure comparable employment has been adversely affected by his or her compensable disability";

2. The claimant may satisfy this burden by showing that the adverse effect on his or her earning capacity was not caused by factors totally unrelated to his or her disability"; and

3. The issue of whether a claimant's reduced earnings are causally related to the work-related injury "is a factual one for the Board to resolve, and its findings will not be disturbed [by the court] if supported by substantial evidence."

The Appellate Division opined that "[t]he credited evidence established that [Appellant] worked for the employer for more than nine years following his 2008  injury and that his decision to retire in 2017 "was influenced by economic factors, including a retirement incentive package offered by the employer."

Although Appellant claimed that his disability restricted the types of positions available to him after his voluntary retirement, the Appellate Division held that Appellant's claim was undermined by the fact that he was able to perform his required administrative work for many years after sustaining his work-related injury. Under the circumstances, the court found that Appellant's voluntary retirement has a "significant bearing" upon his claim to entitlement to a reduced earnings award, and ruled that there was no error in the Board's consideration of these factors.

Finding substantial evidence existed in the record to support the Board's decision, the Appellate Division held that "there is no basis upon which to disturb it."

*  In the event a claimant's post-injury wages are less that the claimant's pre-injury wages due to the claimant's workplace injury or illness, New York's workers' compensation law permits payments not to exceed two-thirds of the difference to eligible claimants.

Click here to access the full text of the Appellate Division's decision.

 

Executive Order addressing preventing and combating discrimination on the basis of gender identity or sexual orientation issued

On January 20, 2021, the President of the United States, Joseph R. Biden Jr., issued a number of Executive Orders including an Executive Order stating that that gay and transgender people are protected against discrimination by Title VII of the Civil Rights Act of 1964. Title VII prohibits unlawful discrimination “because of sex.”

The Order states that "This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person."

Click here to access this Executive Order.

Courts apply the substantial evidence standard when considering a challenge to the penalty imposed following a disciplinary action

A police detective [Plaintiff] was terminated from his position after being found guilty of possessing and ingesting methamphetamine. The Appellate Division found that there was substantial evidence in the record supporting the finding that Petitioner possessed and ingested methamphetamine.

Noting that "[T]hree samples of hair from [Plaintiff's] [leg] were subjected to repeated testing by independent laboratories and yielded positive results," the court opined that to the extent there were conflicting expert opinions as to the efficacy of drug testing using hair, as well as character witness testimony tending to show that petitioner did not use drugs, "courts may not weigh the evidence or reject the choice made" by the hearing officer to accept or reject particular testimony.

As to the penalty imposed, dismissal from his position, the Appellate Division said it found "no grounds" to vacate the penalty as "[t]he [appointing authority's] dismissal of a police officer for using illegal drugs is not so disproportionate to the offense as to be shocking to one's sense of fairness."

Rejecting Petitioner's contention that the employer "failed to apply the preponderance of the evidence standard," the Appellate Division observed that its review "is limited to a consideration of whether [the penalty imposed] was supported by substantial evidence upon the whole record," citing 300 Gramatan Ave. Assoc., 45 NY2d at 181.

Click here to access the text of the Appellate Division's decision

 

Applying the three-step burden-shifting framework established in McDonnell Douglas Corp. followed where the plaintiff lacks direct evidence of discriminatory conduct

Under the McDonnell Douglas Corporation* three-step shifting framework used in evaluating a Title VII discrimination complaints, the plaintiff must first establish a prima facie case of discrimination, which then shifts the burden to the employer to come forward with a legitimate, nondiscriminatory reason for the adverse employment action. If the employer provides such a justification, the plaintiff must present evidence from which a reasonable jury could find that the employer’s explanation is a pretext for intentional discrimination.

In this case the U. S. Court of Appeals, Second Circuit, assuming that the Plaintiff had established a prima facie case of unlawful discrimination within the meaning of Title VII, found that the record showed that the employer "proffered legitimate reasons for the various employment actions" the Plaintiff challenged as discriminatory and that the Plaintiff failed to present sufficient evidence from which a jury could find pretext.

Citing Schnabel v. Abramson, 232 F.3d 83, the Circuit Court explained that at the third step of the McDonnell Douglas framework, the court's task is to “examin[e] the entire record,” using a case-specific approach, “to determine whether the plaintiff could satisfy his ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.” To satisfy this requirement, the plaintiff must produce enough evidence "to support a rational finding not only that the employer’s nondiscriminatory reasons were false but also 'that more likely than not discrimination was the real reason for the' employment actions."

Finding that the overall record showed that:

1. Plaintiff’s subordinates lodged repeated complaints against him over the course of several years;

2. Plaintiff was consistently combative and defiant toward his superiors; and

3. Plaintiff was unwilling to incorporate constructive feedback in response to his performance reviews over that time.

The Circuit Court opined that assuming it could be argued that Plaintiff in this action presented some evidence of pretext, "the record, taken as a whole, does not permit a reasonable trier of fact to find that 'the most likely alternative explanation' for his termination was [unlawful] discrimination."

Noting that a plaintiff is not guaranteed a trial merely because he can satisfy a prima facie case and can adduce “evidence that arguably would allow a reasonable factfinder to conclude that [the employer’s] explanation . . . is false”, in this instance Plaintiff failed to demonstrate “weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate, nonretaliatory reasons for its action.”

In the words of the court, "there can be no question that [the Employer] proffered legitimate, non-retaliatory reasons for disciplining and ultimately terminating [Plaintiff]" and based on the totality of the record, the Circuit Court of Appeals said it agreed with the federal district court that "a rational jury could not find that retaliation was the but-for cause of the actions taken against [Plaintiff]."

* McDonnell Douglas Corp.v. Green, 411 U.S. 792.

Click here to access the text of the decision.

 

Attendance and Leave information for officers and employees of New York State as the employer

The leave benefits available to Executive Branch State Officers and Employees in the Classified Service are contained in the Attendance Rules for Employees in New York State Departments and Institutions, attendance and leave provisions of the relevant collective bargaining agreements negotiated with State employee organizations, and related laws, rules and regulations. 

These Attendance Rules and the other attendance and leave provisions referred to above apply to officers and employees of the State of New York as the employer*  and, as provided by 4 NYCRR 1.1, "Except as otherwise specified in any particular rule, these rules shall apply to positions and employments in the classified service of the State and public authorities, public benefit corporations and other agencies for which the New York State Civil Service Law is administered by the New York State Department of Civil Service."

N.B. Civil service commissions of political subdivisions of the State of New York and Personnel Officers appointed pursuant to New York State Civil Service Law §15.1(b) or §15.1(d) may have promulgated or adopted similar provisions applicable to public officers and employees employed in positions under their jurisdiction.

The information listed below has been posted on the Internet by the New York State Department of Civil Service. The New York State Attendance and Leave Manual is the official published description of the manner in which leave benefits are to be administered. Links to the Manual and other relevant information concerning attendance and leave issues, and calendars of legal holidays, are set out below.

Click here to access the  New York State Attendance and Leave Manual posted on the Internet. 

Memoranda of special note posted by the New York State Department of Civil Service are listed below. Click on text in colorto access the particular information of interest.

Family Medical Leave Act

Military Leave Related Memoranda

 

Recent Memoranda and Bulletins posted on the Internet by the New York State Department of Civil Service.

Click on text in colorto access the particular information of interest.

Policy Bulletin No. 2020-06, Implementation of the Productivity Enhancement Program for 2021

Policy Bulletin No. 2020-05, Clarification of Policy Bulletin 2020-01 and 2020-04

Policy Bulletin No. 2020-04, Clarification of Policy Bulletin 2020-01, entitled Guidance Related to Recent State and Federal Law and Policy Changes Due to COVID-19

Policy Bulletin No. 2020-03, Executive Order Recognizing Juneteenth as a Holiday for State Employees - June 19, 2020

Advisory Memorandum No. 2020-04, Designation of Floating Holidays in lieu of Election Day and Lincoln's Birthday for Contract Year 2020–2021

Advisory Memorandum No. 2020-03, Independence Day—July 4, 2020

Policy Bulletin No. 2020-02, Time Off to Vote

Policy Bulletin No. 2020-01, Guidance Related to Recent State and Federal Law and Policy Changes Due to COVID-19

Advisory Memorandum No. 2020-02, Memoranda of Understanding on Extension of Special Military Benefits and Post-Discharge Benefits through December 31, 2020

Advisory Memorandum No. 2020-01, Special Holiday Waiver Memoranda of Understanding for Security Supervisors Unit (SSpU), Security Services Unit (SSU), and Agency Police Services Unit (APSU)

Policy Bulletin No. 2019-05, Implementation of the Productivity Enhancement Program for 2020

Policy Bulletin No. 2019-04, Attendance and Leave Item - 2016-2023 State-NYSCOPBA Negotiated Agreement

Advisory Memorandum No. 2019-03, Designation of Floating Holidays in Lieu of Election Day and Lincoln's Birthday for Contract Year 2019-2020

Transmittal Memorandum No. 45, 2020 Calendar of Legal Holidays and Days of Religious Significance

Policy Bulletin No. 2019-03, Implementation of Paid Family Leave Benefits for Rent Regulation Services Unit Employees

Advisory Memorandum No. 2019-02, Special Holiday Waiver Memoranda of Understanding for Security Supervisors Unit (SSpU), Security Services Unit (SSU), and Agency Police Services Unit (APSU)

Policy Bulletin No. 2019-01, Military Leave for Combat Related Health Care Services

Advisory Memorandum No. 2019-01, Memoranda of Understanding on Extension of Special Military Benefits and Post-Discharge Benefits through December 31, 2019

Policy Bulletin No. 2018-05, Implementation of the Productivity Enhancement Program for 2019

Policy Bulletin No. 2018-04, Line of Duty Sick Leave Related to World Trade Center Conditions

Policy Bulletin No. 2018-03, Attendance and Leave Items in the 2016-2021 Negotiated Agreements Between the State of New York and CSEA for Employees in the Administrative Services Unit (ASU), Institutional Services Unit (ISU), Operational Services Unit (OSU) and the Division of Military and Naval Affairs (DMNA)

Policy Bulletin No. 2018-02, Leave for Cancer Screening

 

Information posted on the Internet by the New York State Department of Civil Service for the calendar years indicated:

2020

2019

2018

2017

2016

2015

2014

2013

2012

2011

2010

2009

2008

2007

2006

2005

2004

2003

2002

2001

2000

 

Calendars of Legal Holidays

2021

2020

2019

* Although not all employees of the State are "state officers," all officers of the State are State employees.

Questions concerning attendance and leave issues? Call (518) 457-2295.