Four months to appeal an adverse disciplinary determination is the limit

Four months to appeal an adverse disciplinary determination is the limit

Bevins v. Brugher, 83 A.D.2d 66

When the employees were found guilty of misconduct, the penalty of dismissal “effective immediately” was imposed.

The employees were notified by letter dated December 31. On May 2 of the following year the employees sought to overturn their terminations. The Court dismissed their petitions as untimely, as it was brought more than four months after the effective date of the dismissal.

The Appellate Division rejected the argument that an appointing authority could “purposefully withhold notification of the determination, allowing the limitation to run” as ignoring reality in cases of dismissal.

Human Rights may assume jurisdiction after another administrative body acts

Human Rights may assume jurisdiction after another administrative body acts

Jainchill v. NYS Human Rights Appeals Board, 83 A.D.2d 665

After having her appeal that the examiners had improperly rated her oral test because of her sex denied by the Civil Service Commission, Jainchill filed the same complaint with the State Division of Human Rights.

After initially rejecting the complaint because she had previously commenced an administrative action relating to the same grievance, the Division decided that it had jurisdiction after all.

The Appellate Division agreed, stating that the Division cannot consider matters pending before another administrative body but could take jurisdiction once the other administrative agency proceeding was completed.

N.B. The court also noted that if Jainchill had commenced a proceeding seeking judicial review of the Civil Service Commission’s determination, there would have been a permanent barrier to her filing the same complaint with the Division of Human Rights thereafter.

Passing the test is not enough

Passing the test is not enough

Kirchgessner v. Hurlbut, 81 A.D.2d 958

Although number 3 on the eligible list for Senior Caseworker, Kirchgessner was disqualified because she did not have the specified training and experience required for the position.

When her appeal to the County Personnel Officer was denied, she sued to have her name restored to the eligible list.

Kirchgessner claimed experience as a Social Welfare Examiner satisfied the “social work” requirement for Senior Caseworker (See 18 NYCRR 680.14 for the qualifications).

The Appellate Division ruled that while the descriptions of Senior Caseworker and Senior Social Welfare Examiner (See 18 NYCRR 680.14) by broad interpretation could be viewed as “generally similar,” the Personnel Director was not arbitrary in his determination that Kirchgessner’s work experience did not fulfill statutory criteria and dismissed the appeal.

The court also noted that Hurlbut had consulted with the State Civil Service Commission to confirm his interpretation.

Challenging a disciplinary termination

Challenging a disciplinary termination
Matter of Matter of Roberts v Board of Collective Bargaining of the Off. of Collective Collective Bargaining, 2011 NY Slip Op 08807, Appellate Division, First Department

District Council 37, AFSCME, AFL-CIO, challenged the penalty of dismissal imposed on one of its unit member. The employee was terminated from his position following a hearing before the New York City’s Office of Administrative Trials and Hearings. The administrative law judge had found the individual guilty of certain charges and had recommended that the employee be terminated from his position, which recommendation was adopted by the appointing authority.

Although the employee appealed the appointing officer decision to the New York City Civil Service Commission, the Commission dismissed the appeal.

Noting that "The express provisions of Civil Service Law §§75 and 76 limit the appealability of a final agency determination to an article 78 proceeding or an appeal to the Civil Service Commission," the Appellate Division said that the employee failed to file a timely Article 78 “challenging that determination.”

The Appellate Division also sustained a ruling by the City’s Office of Collective Bargaining's Board of Collective Bargaining in which it declined to order the rescission and expungement of employee’s termination.

Although the challenge related only to the alleged improper charge of misuse of confidential information, the Appellate Division said that the employee’s termination was based on a number of sustained charges that were not found to be the product of improper anti-union practices.

The court held that the reinstatement of an employee in the context of an improper practice petition before OCB’s Board of Collective Bargaining “is only warranted where anti-union animus” was the “substantially motivating cause of [of the employee’s dismissal] and not merely one of the reasons therefor.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08807.htm

Individual has no right to have another position created should the program in which he or she served is discontinued

Individual has no right to have another position created should the program in which he or she served is discontinued

Niroomand v. St. Lawrence County Board of Legislators, 82 A.D.2d 939

When the County Laboratory System was discontinued, hospitals using the service were expected to obtain laboratory service elsewhere or provide their own.

The former Director of the County Laboratory was not hired by any of the hospitals. She then attempted to compel the County to grant her permanent Civil Service status, retroactively, and then appoint her to an appropriate position pursuant to Section 70 of the Civil Service Law, or place her on a preferred list (Section 80, CSL).

The Appellate Division decided that there was no transfer of functions that would serve to entitle the former employee to a Section 70 transfer, noting that the closing of the Laboratory was to save money and avoid a duplication of services.

Holding the question of granting permanent civil service status academic, the court observed that even if Niroomand held such status, she was neither entitled to employment by any of the hospitals nor to placement on a preferred list because “it is unlikely that a County Laboratory will be re-established and there is no one whom [Niroomand] can displace”.

Significantly, the court indicated that the hospitals involved do not have to create a position for her.

N.B. Placement on a preferred list flows from a right created by Section 80 of the Civil Service Law, not whether placement pursuant to Section 81 of such law is expected or materializes.

Supervisor terminated for staging plot to “fool” employees

Supervisor terminated for staging plot to “fool” employees

Keith v NYS Thruway Authority, ;517 N.Y.S.2d 334

What might start as a “practical joke” may result in disciplinary action being taken against a supervisor or an employee if the consequences of such a “joke” adversely affect employees or the agency. A recent ruling by the Appellate Division, illustrates just such a situation.

Bertram Keith, an employee of the NYS Thruway Authority, was overseeing the installation of a new heating system in a toll plaza when some employees were apparently exposed to asbestos. The employees were granted sick leave and Keith reprimanded for “failing to take proper safety precautions.”

Believing that the employees had fabricated their illness, Keith, with the aid of his subordinates, created the appearance that asbestos removal at another location had commenced without appropriate precautions having been taken. In fact, the removal work had not yet been started. His scheme succeeded, producing worker panic and union threats of pulling all toll workers off the job.

As a result, charges of misconduct were filed against Keith alleging he had led employees to believe that their health was in danger and his actions placed the Thruway in a position where its tollbooths would be unmanned. A hearing officer found Keith guilty of the charges and recommended his termination.

When the Authority adopted the findings and recommendation of the hearing officer, Keith appealed, arguing that he should not have been terminated as “nobody was in actual peril.”

The Appellate Division affirmed Keith’s dismissal

The Appellate Division found that there was substantial evidence that Keith orchestrated a plot to simulate asbestos removal and that the deception resulted in worker panic and nearly caused the employees to abandon their workstations.

“Such conduct by a public employee in a position of supervision cannot be countenanced or lightly disregarded” said the Court. The fact that no employee had been exposed to asbestos was of no concern to the court as “the alarming situation created was precisely the result sought by (Keith)” and it was for that action that disciplinary charges were filed.

The Court than refused to modify the penalty stating that “in light of the egregious nature of (Keith’s) actions and resulting hysteria which flowed naturally and foreseeable therefrom, we cannot say that the penalty imposed by the agency was inconsistent with the notions of fairness.”

More severe disciplinary penalty imposed by Commissioner Of Education sustained

More severe disciplinary penalty imposed by Commissioner Of Education sustained

Kloepfer v. Ambach 82 A.D.2d 974

A teacher having 11 years of satisfactory service was charged with being ineffective and incompetent following her transfer to another school. After an Education Law Section 3020-1 hearing, the hearing officer recommended that she be suspended for six months and placed in another school.

On appeal, the Commissioner of Education held the teacher should be terminated. When the teacher sued, the Court held the Commissioner could impose the penalty of dismissal.

Zero drug tolerance policy must be consistent with terms of the collective bargaining agreement

Zero drug tolerance policy must be consistent with terms of the collective bargaining agreement

Matter of Matter of Shenendehowa Cent. School Dist. Bd. of Educ. (Civil Serv. Empls. Assn., Inc., Local 1000, 2011 NY Slip Op 08703, Appellate Division, Third Department

The Civil Service Employees Association had filed a grievance challenging the dismissal of one of the employees in the collective bargaining unit it represented was terminated after failing a random test for drug and alcohol test. The issues that the parties jointly presented to the arbitrator were, "Did [the school district] violate Article IV of the Collective Bargaining Agreement [CBA] when it terminated [the employee]? If so, what shall the remedy be?"

The arbitrator determined that employee had tested positive for marijuana, but that the school district had violated the CBA by terminating her. As a remedy, the arbitrator directed that the employee be reinstate, without back pay, but required that she comply with follow-up drug and alcohol testing and an evaluation by a substance abuse professional.

Supreme Court granted the Shenendehowa Central School District’s Article 75 petition seeking vacate an arbitration award thereby “reinstating the employee’s termination.”

The Appellate Division disagreed, ruling that the award was not against public policy was rational, and in making the award the arbitrator did not exceed his powers, holding that “Supreme Court should have confirmed the arbitration award.”

The Appellate Division explained that “If a matter is submitted to arbitration, reviewing courts should not interpret substantive conditions of the agreement or delve into the merits of the dispute.” Citing Matter of Grasso, 72 AD2d 1463 [Leave to appeal denied, 15 NY3d 703], the court said that "Courts must give deference to an arbitrator's decision and cannot examine the merits of an arbitration award, even if the arbitrator misapplied or misinterpreted the law or facts, but a court may vacate an award" where it "violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power." Further, the Appellate Division stated that "[W]here an agreement is 'reasonably susceptible of the construction given it by the arbitrator, a court may not vacate the award," citing Matter of Albany County Sheriffs Local 775 of N.Y. State Law Enforcement Officers Union, Dist. Council 82, AFSCME, AFL-CIO [County of Albany], 27 AD3d 979.

Underlying the school district’s decision to terminate the employee was its assertion that it had “a zero tolerance policy concerning positive drug tests, thereby mandating discharge.” However, said the court, no such written policy was produced in evidence. Rather, the school district’s written drug testing policy states that a violation "shall be grounds for disciplinary action including, but not limited to, fines, suspension and/or discharge."

Here, said the Appellate Division, the arbitrator reasoned that the school district did not have a written zero tolerance policy. When read in conjunction with the CBA, the district’s policy “permitted either suspension without pay or discharge after a positive drug test result.”

The arbitrator, the court found, determined that school district had violated the CBA by refusing to consider the disciplinary options provided for in petitioner's own policy and the CBA, instead imposing the penalty of discharge as if it were mandatory.

According to the decision, if the school district intended to implement a zero tolerance policy, it could and should have negotiated with CSEA to include such mandatory language in the CBA. Not having done so, petitioner must abide by the language actually negotiated for and agreed upon with CSEA.

Having determined that the school district had violated the CBA, the arbitrator — who was permitted by the parties' statement of the issues to determine a remedy — then found the appropriate penalty for respondent to be reinstatement without back pay, which equated to a suspension of approximately six months without pay, a rational result and with the powers granted to the arbitrator.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08703.htm

Appointment of hearing officer and due process

Appointment of hearing officer and due process

Alhmeyer v. Retirement System, 82 A.D.2d 954

An employee occasionally may challenge the results of a disciplinary action on the grounds that due process had been denied because the appointing officer designated the hearing officer to consider the disciplinary action.

In Alhmeyer v. Retirement System, 82 A.D.2d 954, the Appellate Division held that in the absence of a factual showing of some impropriety in the hearing process, the mere fact that the Comptroller appointed the hearing officer and the doctors who examined Alhmeyer on behalf of the Retirement System does not constitute a denial of due process.

It is believed that courts would apply the same standard with respect to the appointment of hearing officers in disciplinary actions pursuant to Section 75 of the Civil Service Law as well as in hearings required pursuant to Sections 71, 72 and 73 of the Civil Service Law and similar administrative proceedings.

Refusal to submit to mental examination leads to termination

Refusal to submit to mental examination leads to termination

Lucheso v. Dillon, Sheriff, 80 A.D.2d 988

The appointing authority directed an employee to undergo a mental examination pursuant to “Civil Service Law Section 72” and advised the individual that “noncompliance would subject the employee to disciplinary action.”

The employee refused and was charged with violating the County’s work rule that prohibited the refusal to follow job instructions.

A hearing pursuant to Section 75 of the Civil Service Law was held and the hearing officer found the employee had not kept the scheduled medical appointment, had been involved in progressive discipline, and recommended removal. On appeal, the Appellate Division found that the record supported the determination and that the penalty of dismissal in view of the circumstances reflected in the record was not excessive nor its imposition an abuse of discretion.

Salary adjustments due injured firefighters

Salary adjustments due injured firefighters

Drahos v. Village of Johnson City, 80 AD2d 100

In Drahos the court held that a firefighter injured in the line of duty and unable to return to work is entitled to the full amount of his regular salary until he returns, citing Section 207-a of the General Municipal Law.

This provision, according to the opinion, includes increases and adjustments received by firefighters in active status during the period of absence.

It is assumed that the Court would grant similar treatment to police officers injured in the line of duty and otherwise eligible for equivalent benefits pursuant to General Municipal Law§207-c.

Interested in becoming a paralegal?

Interested in becoming a paralegal?

Shelby Crockett has created a Paralegal Education site called HOW TO BECOME A PARALEGAL, Complete Guide To Paralegal Schools And Degrees.

It is posted on the internet at  http://www.howtobecomeaparalegal.com and provides a comprehensive resource for persons seeking information concerning preparing to become a paralegal.

In addition, there is a link to a Blog listing various Resources and Technology related items that could be useful to paralegals as well as other helpful information.

Employer held to have committed an unfair labor practice when it unilaterally discontinued certain pension benefits.

Employer held to have committed an unfair labor practice when it unilaterally discontinued certain pension benefits.

City of Erie [Pennsylvania] v Pennsylvania Labor Relations Board, Docket # 24 WAP 2010

The International Association of Firefighters, Local 293, AFL-CIO, the exclusive bargaining representative of a unit of firefighters and other personnel employed by the City of Erie, negotiated several previous collective bargaining agreements.

In this action the Local alleged that the City had violated the terms of a contract for the period from January 1, 2005 to December 31, 2007 when it unilaterally eliminated lawful firefighter pension benefits without first collectively bargaining with the firefighters' representative.

Pennsylvania’s Collective Bargaining by Policemen and Firemen Act requires negotiation over the modification or elimination of pension benefits.

Supreme Court found no applicable exception to this statutory mandate, reversing the order of the Commonwealth Court rejecting the Local’s claims.

The decision is posted on the Internet at:

http://statecasefiles.justia.com/documents/pennsylvania/supreme-court/24-wap-2010.pdf?1322273066

Employees cannot avoid competitive examination otherwise required

Employees cannot avoid competitive examination otherwise required

Bloomberg-Dubin v Board of Education, 82 AD2d 854, affd 56 NY2d 555

In a case involving the question of whether the New York City Board of Education could require certain teachers to be subject to appointment and licensing by competitive examination, the court stated that the Board could not be stopped from requiring that the competitive examination be held.

Although the teachers involved held “conditional certificates”, they were required to take the examination ordered by the Board.

Refusal to provide doctor’s note concerning absence from work

Refusal to provide doctor’s note concerning absence from work

Carr v. Ross, 81 A.D.2d 999

A teacher, absent for five days, was paid for three days of the absence alleged due to a back injury but the school district refused to pay for absence beyond the third day without a doctor’s note verifying an illness or injury.

The teacher refused to provide a doctor’s note and resigned “because of his employer’s insistence that he furnish a doctor’s note before he would be paid for two of the days he was absent”. He also stated that he belonged to a religious group that forbids the use of medical doctors except in life or death situations.

The Unemployment Insurance Appeals Board found that the educator had left employment for personal and non-compelling reasons and disqualified him for benefits.

Using time cards

Using time cards

Walker v. Washington, 657 F2d 541

An employee, claiming that his agency’s requirement that he fill out and sign a time card was demeaning, degrading and incriminating, sued the State of Washington. The Circuit Court of Appeals held that requiring an employee to complete a time card was not an “illegal search” and that the employer could properly ask an employee to account for the time for which he was being paid.

The Supreme Court declined to hear the appeal from the decision filed by Walker.

Accepting a lower paying position to avoid layoff

Accepting a lower paying position to avoid layoff

Almond v Kansas Unified School District, USCA, 10^th Circuit, Docket #10-3315

Former employees of the Kansas Unified School District #501 alleged that they had suffered wage discrimination as the result of their having been offered, and their accepting, new positions with lesser pay within the District rather than being laid off as the result of a District-wide downsizing effort.

As they had not filed their claims until several years after the alleged pay discrimination took place, federal district court ruled that their action was untimely.

While the case was pending Congress enacted the "Ledbetter Act"* specifically aimed at addressing "discrimination in compensation" claims in which members of a protected class receive less pay than similarly situated colleagues.

Although the employees contended that their claims included “Ledbetter Act” violations, the Tenth Circuit concluded that because the employees had not alleged an unequal pay for equal work claim, the Ledbetter statute of limitations did not apply to their cause of action. Accordingly, said the court, the pre-Ledbetter rules applied and under those rules their claims were untimely.

* The Ledbetter Act came in response to the Ledbetter case. Lilly Ledbetter proved that her supervisors gave her poor performance reviews because of her gender — and that these reviews, in turn, caused her employer to pay her less than similarly situated male workers. Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618.

The decisions is posted on the Internet at:

http://www.ca10.uscourts.gov/opinions/10/10-3315.pdf

Writ of mandamus to compel disclosure of records pursuant to FOIL

Writ of mandamus to compel disclosure of records pursuant to FOIL

State ex rel. Dawson v Bloom-Carrol Local School District, Ohio Supreme Court, Docket 2011-0145

A parent sought a writ of mandamus* to compel a local school district to provide her with itemized invoices of law firms for services it bill the district concerning the parent’s children, and any communications from the school district's insurance carrier concerning litigation she brought against the district on behalf of one of her children.

Ohio Supreme Court denied the writ, explaining that the requested records were exempt from disclosure under Ohio’s Public Records Act because the school district met its burden of establishing the applicability of the attorney-client privilege to the requested records.

* “Mandamus was one of a number of ancient common law writs and was issued by a court to compel an administrative body to perform an act required by law.

Selected PERB decisions

Selected PERB decisions

Duty of fair representation

     The Union violated its duty to represent a non-member of the Union in the collective bargaining unit when it refused to appear on behalf of the non-member teacher in a hearing before the School Board regarding the teacher’s unsatisfactory performance rating. (Case U-4165 Matter of United Federation of Teachers)

Bargaining in good faith

     A School District could not refuse to pay a school administrator benefits provided under an expired contract (pay for accumulated sick leave credits upon retirement) when the record shows that the District did not bargain in good faith regarding the continuation of such benefit. (Case U-4616 Matter of Levittown Union Free School District)

Work now, grieve later

     Employee’s mistaken belief that the employer was in violation of the contract did not excuse his refusing to work, but even if he were correct, he would have been wrong in absenting himself from work as the proper recourse was to grieve the matter. (Case U-4642, Matter of Nassau County Chapter CSEA)

Scott v Wetzler, 195 AD2d 905, illustrates an application of the general rule that except in life-threatening situations, or in situations where the employee is asked to perform a clearly unlawful act, if an employee objects to complying with a superior's directive, he or she should "work now, grieve later."

Non-mandatory subjects of collective bargaining:

    Benefits for employees already retired, the number of full-time employees required and demands to fill vacant positions are not mandatory subjects of negotiations under the Taylor Law. (Case U-4905, Matter of the Village of Hudson Falls)

Criminal conviction requires finding of guilt in administrative disciplinary proceeding

Criminal conviction requires finding of guilt in administrative disciplinary proceeding

Kelly v. Levin, 440 NYS2d 424

A school business administrator was charged with larcenies of school funds and bringing discredit upon the school district.

The Education Law Section 3020-a disciplinary panel found the administrator guilty of the charge of bringing discredit upon the district, but not guilty of the larceny charges.

Kelly, however, had been convicted of two counts of grand larceny for theft of school property prior to being charged under Section 3020-a (see People v. Kelly, 72 AD2d 670).

The court held that the fact that the administrator had committed two larcenies of school property was conclusively established under the doctrine of collateral estoppel. As the hearing panel’s decision was based on a finding of guilt of “bringing discredit” charge only, the matter was remitted after the Court reversed the panel’s finding of not guilty of the charges and remanded the matter to the panel for it’s reconsideration of the appropriate penalty to be imposed.

Termination date change does not adversely affect eligibility for Unemployment Insurance benefits

Termination date change does not adversely affect eligibility for Unemployment Insurance benefits

Kalichman v. Ross, 439 N.Y.S.2d 718

When a school secretary was informed that her last day of work would be August 22, she asked that the last date of her service be changed to August 18.

Although the school approved the change, her unemployment insurance claim was rejected because she left on a “voluntary basis”.

The Court held that the change of date in this case was not significant and did not change an involuntary termination into a voluntary one. It then ordered the payment of the unemployment insurance claim.

No claim for back pay upon reinstatement

No claim for back pay upon reinstatement

Koppman v. Board of Education, 95 A.D.2d 777

If a probationary employee reinstated to his or her former position was not removed from the  position unlawfully “neither the Constitution nor New York State Law recognizes the right of a reinstated probationer to an award of back pay”.

This, in a nutshell was the conclusion of the Appellate Divisions in the Koppman case.

The court’s rationale: “In the absence of a statute requiring the payment of back pay, the public employer is not required to pay back wages as the payment of such compensation without the performance of service would constitute an unconstitutional gift of public funds (Article 8, Section 1, of the State Constitution).”

Town may terminate health insurance coverage for Medicare-eligible retirees

Town may terminate health insurance coverage for Medicare-eligible retirees

Op St Comp 80-105

The State Comptroller has issued an opinion indicating that a town may terminate the health insurance coverage of a retired town employee when the retiree becomes qualified for Medicare coverage benefits.

It appears that the view of the Comptroller is limited to local governments which are not participating in the State’s Employees’ Health Insurance Programs [NYSHIP]. 

Insofar as public employers participating in NYSHIP are concerned, Section 167-a of the Civil Service Law controls with respect to health insurance coverage available to NYSHIP retirees upon their becoming Medicare-eligible. 

With respect to public employers that do not participate in NYSHIP there may be provisions in a collective bargaining agreement that would control the health insurance participation of an entity's retirees upon their becoming Medicare-eligible.

Public official must claim his or her qualified immunity as a defense when sued in federal court

Public official must claim his or her qualified immunity as a defense when sued in federal court

Gomez v. Toledo, 64 L Ed 2d 548

The United States Supreme Court has ruled that a public official sued under 42 USC 1983 (The Civil Rights Act) must claim that the acts alleged to be discriminatory were performed in good faith if he or she seeks qualified immunity as a defense.

Duplicative FOIL requests

Duplicative FOIL requests
Badalamenti v Office of Dist. Attorney Nassau County, 2011 NY Slip Op 08588, Appellate Division, Second Department

The Nassau County District Attorney's Office rejected the FOIL request submitted by Anthony Badalamenti seeking the disclosure of certain telephone numbers and recordings of certain telephone calls.

In the proceeding before Supreme Court the District Attorney's Office had established that it had earlier provided Badalamenti with the information or records he sought pursuant to an earlier FOIL request or hat it did not have the records he demanded in its possession.

The Appellate Division held that FOIL does not require the custodian of the public records demanded, here the District Attorney’s Office, to furnish records it does not possess.

The court also ruled that Badalamenti was not entitled to additional copies of those records he sought that had previously be provided to him “unless he can show that the copies are no longer in his or his attorney's possession, a showing he failed to make.”

Access to documents under FOIL limited

Access to documents under FOIL limited

Sinicropi v. Nassau County, 76 AD2d 832

Sinicropi was denied access to certain records related to an administrative disciplinary proceeding.

Citing the McAulay decision (48 NY2d 659), the court refused to order the employer to give the Sinicropi the records he sought, which records the court described as intra-agency memoranda concerning an employee, notes and communications made in preparation of the disciplinary hearing and the transcript of the hearing.

The court viewed this materials as “pre-decisional intra-agency memoranda that are not reflective of final agency policy or determinations” and are therefore exempt from disclosure under the Freedom of Information Law.

Sinicropi had been given a copy of the charges preferred against an employee, the employee's answer to the charges, the "bill of particulars" of the charges and the stipulation of settlement of the disciplinary action. The Court held that further disclosure would be unnecessary and improper.

Human Rights Appeals Board review powers limited

Human Rights Appeals Board review powers limited

CBS v. State Human Rights Appeals Board, 76 AD2d 813

The Division of Human Rights had dismissed the complaint of discrimination filed by a former employee of CBS for lack of probable cause.

On appeal the Human Rights Appeals Board reversed the Division’s determination after making its own findings as to seniority and other matters concerning the complaint.

The Appellate Division held that in so doing the Appeals Board had exceeded its authority, substituting its own factual findings for that of the Division.

The Board’s function, said the court, is to determine whether the Division’s decision was based on substantial evidence or not.

The Appellate Division then reinstated the Division’s determination, stating that “in reversing [the Division] the Board must have been saying either that there was not substantial evidence or else that the ruling was arbitrary and capricious and an unwarranted exercise of discretion. There was no basis for this determination ... the Division’s expertise in evaluating discrimination claims may not be lightly disregarded.”

Annuities may be processed through one agent

Annuities may be processed through one agent

Op St Comp 80-121

A school district which purchases annuities for its employees from a number of insurance companies may make arrangements to have all payments made to one company and have that company make the distribution to the other insurance companies involved.

Such an arrangement is expected to reduce an employer’s accounting costs that may be significant when it must process a large number of accounts on behalf of its employees. The most common situation is the transmittal of funds in connection with tax-deferred annuities purchased on behalf of employees.

Criminal record results in removal from state job

Criminal record results in removal from state job

Disciplinary arbitration award

An arbitrator held that the State acted properly when it removed an employee form his position upon discovery that he had failed to report his earlier conviction on the application form for his job.

The employee had indicated that he had never been convicted when in fact he had been convicted of a number of crimes.

The Civil Service Law (Section 50.4) provides for the removal of an employee found to have falsified his application form. In such cases the law requires that the employee be given an opportunity to explain the matter before being removed from the position.

It appears that the reason for the employee’s removal was the falsification of the information on the application form, not the fact that he had earlier been convicted.

Generally the employee or applicant having a criminal conviction in his record may not be barred from employment unless the offense is found to be job related and has a potential for a breech of faith or a related problem.

For example, conviction for illegal possession of a drug might be a basis for disqualifying a person seeking a position in a pharmacy where controlled substances and drugs are kept but probably would not be relevant in connection with a clerical position in an office.

Inconsistent determinations void discipline finding

Inconsistent determinations void discipline finding

Fogerty v. Connelie, 76 A.D.2d 987

The three member board found the employee not guilty of one charge, but guilty of a number of other charges.

The appointing officer found the employee guilty of all the charges after “acceptance of the board’s findings and conclusions” and imposed the penalty of dismissal.

The Court annulled the determination, holding that “(a) comparison of Connelie’s decision and that of the hearing board establishes that the two determinations are inconsistent in that Connelie, but not the board, found Fogerty guilty of all the specifications in the first charge”.

Also missing from the appointing authority’s decision were the reasons relied upon by Connelie for the dismissal of Fogerty.

Employee denied additional probationary period

Employee denied additional probationary period

In Re Holbrook, 78 A.D.2d 840

The agency terminated the employee for failing to satisfactorily complete his probationary period because “his conduct towards his peers and subordinates engendered hostility, he failed to follow...policy respecting the routing and handling of legal department mail causing unnecessary delays...and he took upon himself the task of reviewing the operations of the legal department...diverting...from the work priorities his superiors had established for him”.

The employee sued and a State Supreme Court judge granting Holbrook petition and directed that the employer extend the individual’s probationary period for 12 weeks.

The Appellate Division overturned the lower court’s ruling, holding that there was a clearly ample rational justification for the termination since “(the employee) in his reply affidavit virtually confirms [the employer’s] observations” concerning his performance of his duties.

The court also rejected the employee’s representation that his dismissal was motivated by his uncovering and reporting his immediate supervisor’s poor management practices. 

Tenured teacher’s objection to submitting a challenge to termination to arbitration rejected

Tenured teacher’s objection to submitting a challenge to termination to arbitration rejected

Atwater v. Commissioner of Education, Massachusetts Supreme Court, November 21, 2011, Docket: SJC-10817

A tenured teacher was terminated for conduct unbecoming a teacher.

The teacher appealed contending that Massachusetts law compelling arbitration of a wrongful dismissal claim made by a tenured public school teacher violated Article 30 of the Massachusetts Declaration of Rights because it impermissibly delegated to a private individual (an arbitrator) a judicial function and denied meaningful judicial review.

Massachusetts Supreme Court ruled that submitted a challenge to a principal's or superintendent's dismissal decision to arbitration did not interfere with “core judicial functions” and the statute provided sufficient judicial review.

The decision is posted on the Internet at:

http://law.justia.com/cases/massachusetts/supreme-court/2011/sjc-10817.html

Dismissed employee entitled to back pay

Dismissed employee entitled to back pay

Matter of Rider, 78 A.D.2d 856

The employee was found guilty to the charges brought against him and dismissed under Section 75 of the Civil Service Law. He had been suspended without pay upon the service of the charges and continued in that status until after the hearing and his dismissal. This involved a period of more than the 30 days suspension without pay permitted by Section 75.

The Appellate Division ruled that the employee, notwithstanding the fact that he was terminated from his position, was entitled to back pay for the period beginning 30 days after his suspension until the date of dismissal.

The court noted that this was the correct result “even though there was substantial evidence to support the finding of guilt and the fact that the penalty imposed was not excessive.”

Unblemished record mitigates discipline penalty

Unblemished record mitigates discipline penalty

Matter of Gailband, 78 A.D.2d 853

The New York City Housing Authority, dismissed an employee and stated “in no uncertain terms, its view of the seriousness of the (employee’s) conduct.”

The Appellate Division, however, ruled that “under the totality of the circumstances at bar, including an unblemished record of more than 15 years duration, the penalty of dismissal was grossly disproportionate to the nature of (the employee’s) misconduct so as to be shocking to one’s sense of fairness.

The court then went on to indicate that it would ordinarily remand the case to the agency for appropriate reconsideration, but as the Authority had strongly and unequivocally condemned the conduct, and as any lesser penalty would increase the Authority’s potential liability for back pay, it would fix the penalty to be imposed.

The Appellate Division ordered the reinstatement of the employee with back pay for absence in excess of three months (including the 30 day suspension period imposed by the Authority in accordance with Section 75 of the Civil Service Law) less unemployment benefits, if any, and any amount [the employee] earned while “dismissed”.

Short v. Nassau County Civil Service Commission, 59 AD2d 157 sets forth some guidelines to be followed in cases such as this.

Court voids arbitrator’s award

Court voids arbitrator’s award

Uniformed Firefighters Association v. City of New York, 76 A.D.2d 392, Motion for leave to appeal denied, 52 N.Y.2d 702

The City of New York filed an petition pursuant to Article 75 of the Civil Practice Law and Rules seeking to vacate an arbitrator’s award that held that the City could not implement its plan to use civilian workers in fire prevention inspector titles.

The court held that the City had the authority and responsibility to allocate its financial resources in a manner it felt most appropriate to prevent fires.

The Appellate Division also observed that “the decision to utilize civilians rather the uniformed firefighters to perform inspection functions is consonant...with the City’s agreement with the Uniformed Firefighters Association and proper”.

Punitive damages awarded for failure to act to prevent sexual abuse of students

Punitive damages awarded for failure to act to prevent sexual abuse of students G.G. v Grindle, U.S. 7th Circuit Court of Appeals, Docket 10-3506 

The Seventh Circuit Court of Appeals affirmed an award of compensatory and punitive damages based on a jury finding a school administrator failed to prevent the sexual abuse of several female students by their teacher.

The teacher had pled guilty to multiple counts of aggravated kidnapping and aggravated criminal sexual abuse.

The award for damages, said the court, was justified in view of the administrator’s failure to act, noting that the administrator advanced “no basis for invalidating the jury’s determination that her conduct justified the imposition of punitive damages.”

The decision is posted on the Internet at:

http://law.justia.com/cases/federal/appellate-courts/ca7/10-3506/10-3506-2011-11-23-opinion-2011-11-23.html

Decisions of interest concerning Labor and Employment Law
Source: Justia November 25, 2011

Barry v. Moran

Court: U.S. 1st Circuit Court of Appeals

Docket: 10-1607

November 22, 2011

Judge: Lipez

Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

Employees of the fire department filed suit under 42 U.S.C. 1983, alleging cronysim and nepotism in employment decisions. The district court granted summary judgment for the department, finding that nothing linked the employment decisions to an identifiable political group, cause, or belief. The First Circuit affirmed. Preferential treatment in public employment decisions, unrelated to protected speech or association, does not infringe upon freedoms secured by the First Amendment.

http://j.st/G9w

NLRB v. Legacy Health System

Court: U.S. 9th Circuit Court of Appeals

Docket: 10-72478

November 21, 2011

Judge: Smith

Areas of Law: Contracts, Labor & Employment Law

The NLRB petitioned for enforcement of its order finding that Legacy Health violated sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. 158(a)(1) and (3) by not allowing its employees to simultaneously hold bargaining unit positions and non-bargaining unit positions. The court held that, under section 10(e) of the Act, the court did not have jurisdiction to hear Legacy Health's exceptions to the NLRB's remedial order. Accordingly, the court granted summary enforcement of the NLRB's order.

http://j.st/GrB

Lopez-Fisher v. Abbott Laboratories

Court: U.S. 10th Circuit Court of Appeals

Docket: 10-4185

November 22, 2011

Judge: Gorsuch

Areas of Law: Civil Rights, Labor & Employment Law

Plaintiff-Appellant Cherie Lopez-Fisher claimed Defendant-Appellee Abbott Laboratories fired her because of her gender, race, color and national origin. After receiving extensive briefing and hearing oral argument in this Title VII case, a magistrate judge entered an order granting summary judgment to Abbott Labs. In her appellate brief, Plaintiff insisted that because she successfully passed a "Performance Improvement Plan" conducted by Abbott Labs, her termination a week later raised an inference of discrimination. The magistrate judge found no evidence in the record that Plaintiff passed the Plan. Furthermore, the magistrate concluded that Plaintiff did not overcome her burden of proof that Abbott Labs' proffered reason for terminating Plaintiff (poor performance) was pretext for discrimination. Accordingly, the Tenth Circuit adopted the magistrate judge's ruling in affirming dismissal of Plaintiff's case.

http://j.st/GFA

Manor Care of Easton, PA., LLC v. NLRB

Court: U.S. D.C. Circuit Court of Appeals

Docket: 10-1411

November 22, 2011

Judge: Per curiam

Areas of Law: Labor & Employment Law

Petitioner petitioned for review of an order of the NLRB, holding that petitioner violated section 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. 158(a)(1) and (3), when it threatened and disciplined a certified nursing assistant and outspoken union supporter. Petitioner admitted that the nursing assistant's union activity was a motivating factor for her discipline; although other employees engaged in conduct similar to the nursing assistant's, petitioner neither investigated nor punished any one of them; and the nursing assistant was disciplined without an inquiry into her actions, as company policy required. Petitioner premised its discipline, at least in part, on the nursing assistant's expired disciplinary history, an impermissible consideration under company rules. Therefore, the court concluded that substantial evidence supported the NLRB's Wright Line determination. In light of these conclusions, the court need not consider the NLRB's alternative ground for its section 8(a)(3) ruling.

http://j.st/GjM

Retired Employees Assoc. v. Co. of Orange

Court: California Supreme Court

Docket: S184059

November 21, 2011

Judge: Baxter

Areas of Law: Government Contracts, Insurance Law, Labor & Employment Law

This case stemmed from a lawsuit filed in 2007 by the Retired Employees Association of Orange County, Inc. against the County of Orange contesting the validity of certain changes the county had made to health benefits for retired employees. At the request of the Ninth Circuit, the court addressed the following question: "Whether, as a matter of California law, a California county and its employees can form an implied contract that confers vested rights to health benefits on retired county employees." In response, the court concluded that, under California law, a vested right to health benefits for retired county employees could be implied under certain circumstances from a county ordinance or resolution. Whether those circumstances existed in this case was beyond the scope of the question posed to the court by the Ninth Circuit.

http://j.st/GrP

Murtha v. City of Hartford

Court: Connecticut Supreme Court

Docket: SC18751

November 29, 2011

Judge: Eveleigh

Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Labor & Employment Law

Plaintiff, while in the course of employment as a uniformed police officer of the City's police department, was involved in a shooting and was later criminally charged in connection with the shooting. The City suspended Plaintiff without pay pending the outcome of the criminal matter. After being acquitted of all charges, Plaintiff brought an action against the City seeking reimbursement for legal fees, lost wages and lost employment benefits. The trial court awarded Plaintiff $562,277, which included Plaintiff's attorney's fees. The Supreme Court affirmed, holding (1) the trial court's finding of a contract between Plaintiff and his lawyer in which Plaintiff incurred legal fees beyond the retainer was not clearly erroneous; (2) the trial court did not abuse its discretion in awarding damages to Plaintiff for attorney's fees, and the award was not excessive; and (3) Plaintiff was entitled to damages for economic loss during his entire suspension, and the trial court's award of damages for economic loss in this case was proper.

http://j.st/GRT

Espinoza v. Hewlett-Packard Co.

Court: Delaware Supreme Court

Docket: 208, 2011

November 21, 2011

Judge: Jacobs

Areas of Law: Business Law, Corporate Compliance, Labor & Employment Law, Legal Ethics

Plaintiff brought this action under 8 Del. C. 220 to inspect certain books and records of defendant. More specifically, plaintiff sought to inspect one document that defendant refused voluntarily to disclose: an interim report (Covington Report) prepared by defendant's outside counsel in connection with an internal investigation into sexual harassment allegations made against defendant's former CEO. The Court of Chancery denied plaintiff relief and held that plaintiff had not demonstrated a need to inspect the Covington Report sufficient to overcome the attorney-client privilege and work product immunity protections. The court affirmed, but on the alternative ground that plaintiff had not shown that the Covington report was essential to his stated purpose, which was to investigate possible corporate wrongdoing.

http://j.st/GC9

Indiana Spine Gp., PC v. Pilot Travel Ctrs., LLC

Court: Indiana Supreme Court

Docket: 93S02-1102-EX-90

November 17, 2011

Judge: Rucker

Areas of Law: Government & Administrative Law, Health Law, Injury Law, Insurance Law, Labor & Employment Law

Appellant Indiana Spine Group provided medical services to employees of various businesses for injuries the employees sustained arising out of and during the course of their employment. The employers authorized the services and made partial payments. In each case, more than two years after the last payments were made to the injured employee, Appellant filed with the worker's compensation board an application for adjustment of claim seeking the balance of payments. The Board dismissed the applications as untimely. In each case the court of appeals reversed and remanded. At issue on appeal was what limitation period was applicable to a medical provider's claim seeking payment of outstanding bills for authorized treatment to an employer's employee when the Worker's Compensation Act was silent on the question. The Supreme Court reversed the Board, holding (1) the limitation period contained in the general statute of limitation enumerated in Ind. Code 34-11-1-2 controlled; and (2) because Appellant's claim was timely under the statute, the Board erred by dismissing Appellant's application.

http://j.st/Gbi

Blackstone Mining Co. v. Travelers Ins. Co.

Court: Kentucky Supreme Court

Docket: 2009-SC-000015-DG

November 23, 2011

Judge: Venters

Areas of Law: Contracts, Insurance Law, Labor & Employment Law

Travelers Insurance Company brought suit in circuit court alleging that Blackstone Mining Company had underpaid premiums under two separate workers' compensation policies issued by Travelers. Blackstone counterclaimed, alleging that it had overpaid the premiums due under the policies and was entitled to a refund. The circuit court granted summary judgment to Blackstone. The court of appeals reversed. The Supreme Court reversed the court of appeals and reinstated the judgment of the circuit court, holding (1) the court of appeals incorrectly applied well-established burden of proof principles applicable to summary judgment motions; and (2) the circuit court correctly determined that Blackstone was entitled to summary judgment.

http://j.st/Gt8

Savela v. City of Duluth

Court: Minnesota Supreme Court

Docket: A09-2093

November 23, 2011

Judge: Stras

Areas of Law: Contracts, Insurance Law, Labor & Employment Law

At issue in this case was the interpretation of approximately sixty collective bargaining agreements (CBAs) between the City of Duluth and its employees. Subject to certain conditions and exceptions, the CBAs guaranteed retired City employees health insurance benefits "to the same extent as active employees." The dispute in this case centered on the meaning of that phrase, specifically, whether the phrase guaranteed health insurance benefits to retirees to the same extent as employees who were active at the time of a retiree's departure, or to the same extent as current City employees. Several retired City employees filed a lawsuit, alleging that the City had wrongfully changed or threatened to change their health insurance benefits and claiming that CBAs guaranteed that health insurance benefits for retirees would be frozen as of the time of retirement. The district court held for the City. The court of appeals affirmed the district court's interpretation of the active-employees clause. The Supreme Court affirmed, holding that the CBAs unambiguously guaranteed health insurance benefits to retirees to the same extent as current City employees.

http://j.st/GtE

Wrigg v. Junkermier, Clark, Campanella, Stevens, P.C.

Court: Montana Supreme Court

Docket: DA 11-0147

November 22, 2011

Judge: Morris

Areas of Law: Contracts, Labor & Employment Law

Employee worked as a shareholder accountant for Employer. Employee's employment contract contained a covenant not to compete. After Employer ended its employment relationship with Employee, Employee began working at Employer's competitor, where she provided accounting services for a few of Employer's former clients in violation of the restrictive covenant. Employee sought a declaration that the covenant was unenforceable. The district court determined that the covenant was reasonable and enforceable. The Supreme Court reversed, holding that Employer's covenant was unenforceable because (1) Montana law requires that an employer establish a legitimate business interest in a restrictive covenant, which demands that the restriction on post-employment activities be necessary to protect an employer's good will, customer relationships, or trade information; (2) an employer lacks a legitimate business interest in a covenant when, under ordinary circumstances, it ends the employment relationship with the employee; and (3) Employer in this case elected to end its employment relationship with Employee without any misconduct on the part of Employee.

http://j.st/Gyf

Pub. Agency Comp. Trust v. Blake

Court: Nevada Supreme Court

Docket: 54822

November 23, 2011

Judge: Hardesty

Areas of Law: Injury Law, Insurance Law, Labor & Employment Law

Employee suffered a work-related injury to his back in 2004. Employee had also suffered previous accidents resulting in injuries to his lower back. A rating physician determined that Employee's permanent partial disability (PPD) benefits for the 2004 injury should be calculated using a net twenty-six percent impairment rating. Employer's Insurer offered an award to Employee based on a net seventeen percent impairment rating. An appeals officer ordered Insurer to offer Employee a PPD award based on the original impairment rating. The district court affirmed, concluding that Employee's prior impairment rating, which was calculated using an older version of the AMA Guides, should be deducted from his current impairment rating, which was calculated using the current edition of the AMA Guides. The Supreme Court reversed, holding (1) the governing statute required the rating physician to reconcile the different editions of the AMA Guides by first recalculating the percentage of the previous impairment rating using the current edition and then subtracting that recalculated percentage from the current level of impairment; and (2) the district court and appeals officer erred in determining the amount due, and therefore, the PPD award based on the seventeen percent impairment rating for the current injury was proper.

http://j.st/Gtr

Salazar v Novalex Contr. Corp.

Court: New York Court of Appeals

Docket: 200

November 21, 2011

Judge: Pigott

Areas of Law: Construction Law, Injury Law, Labor & Employment Law

Plaintiff commenced a lawsuit against 96 Rockaway, LLC, Novalex Contracting Corp., and T-Construction Co., Inc., alleging among other things, violations of Labor Law 240(a) and 241(6). Discovery and a third-party action ensued. T-Construction moved for summary judgment, seeking dismissal of the complaint, and all cross-claims against it. 96 Rockaway and Novalex cross-moved for identical relief. Supreme Court granted defendants' motions, and dismissed plaintiff's complaint in its entirety. The Appellate Division reversed so much of Supreme Court's order as granted defendants' motions for summary judgment dismissing plaintiff's claims, denied the motions, and reinstated those claims. The court held that, given that Labor Law 240(1) should be construed with a common sense approach to the realities of the workplace at issue, defendants were entitled to summary judgment dismissing that claim. Plaintiff's Labor Law 241(6) cause of action, predicated on a violation of 12 NYCRR 23-1.7(b)(1)(i), failed for similar reasons. Accordingly, the order of the Appellate Division was reversed.

http://j.st/Grr

State ex rel. Donohoe v. Indus. Comm'n

Court: Ohio Supreme Court

Docket: 2010-0734

November 17, 2011

Judge: Per Curiam

Areas of Law: Government & Administrative Law, Injury Law, Labor & Employment Law

Patrick Donohoe died from injuries sustained in a workplace accident. His widow, Catherine, filed an application for additional workers' compensation benefits, claiming that Patrick's accident resulted from his employer's violation of specific safety requirements (VSSRs) governing the construction industry. The Industrial Commission of Ohio denied her application. The court of appeals vacated the order and returned the cause to the Commission for further consideration. Both Catherine and the employer appealed. At issue on appeal was (1) whether the Commission staff hearing officer's order, which could be interpreted in different ways, was deficient; and (2) whether the Commission erred by denying Catherine's application because there were no eyewitnesses to the accident. The Supreme Court affirmed, holding (1) an order that can engender two viable, yet irreconcilable, interpretations is too ambiguous to withstand scrutiny; (2) an order that is potentially based on an erroneous belief that a VSSR cannot issue in the absence of eyewitnesses is clearly an abuse of discretion; and (3) therefore, the court of appeals was correct in returning the cause to the Commission for clarification and consideration of all the evidence.

http://j.st/Gbx

Howard v. Nitro-Lift Technologies, LLC

Court: Oklahoma Supreme Court

Docket: 109003

November 22, 2011

Judge: Watt

Areas of Law: Arbitration & Mediation, Contracts, Labor & Employment Law

Plaintiffs-Appellants Eddie Lee Howard and Shane Schneider (Employees) entered an employment contract with Defendant-Appellee Nitro-Lift Technologies, L.L.C. For two years following termination, the contract prohibited employees from: working for, leasing to, or selling equipment to competitors. The contract contained an arbitration agreement requiring application of Louisiana law with disputes to be resolved in Houston, Texas. After the employees terminated their employment with Nitro-Lift, they went to work for a competitor in Arkansas. The employer filed an arbitration proceeding in Houston. Howard and Schneider filed an application for a declaratory judgment and injunctive relief in Oklahoma asserting that the non-competition agreement violated public policy. The district court initially granted the employees a temporary injunction, prohibiting Nitro-Lift from continuing the arbitration proceedings in Texas. Thereafter, the employer filed a motion to dismiss. After considering the parties' briefs and arguments, the district court found the arbitration clause to be valid on its face and reasonable in its terms, lifted the temporary restraining order, and granted the motion to dismiss. Upon review, the Supreme Court held that: (1) the existence of an arbitration agreement in an employment contract did not prohibit judicial review of the underlying agreement; and as drafted, the non-competition covenants were void and unenforceable as against Oklahoma public policy. The Court reversed the district court's judgment and remanded the case for further proceedings.

http://j.st/G97

Michau v. Georgetown County

Court: South Carolina Supreme Court

Docket: 27064

November 21, 2011

Judge: Toal

Areas of Law: Government & Administrative Law, Injury Law, Insurance Law, Labor & Employment Law

Appellant Alexander Michau appealed a ruling by the Appellate Panel of the South Carolina Workers' Compensation Commission (Commission) denying his claim for repetitive trauma injuries to his shoulders. Specifically, Appellant challenged the Commission's interpretation and application of section 42-1-172 of the South Carolina Code. Prior to his injury in 2008, Appellant did not report any work-related problems with his arms to his employer, although he sought outside treatment. The Commission denied Appellant's claim on the grounds that "the greater weight of the medical evidence reflects [Appellant's] upper extremity and shoulder problems are related to pre-existing osteoarthritis and/or rheumatoid arthritis and not caused or aggravated by his employment with Georgetown County." Appellant disputed the admissibility of the Commission's expert doctor's report under South Carolina Code section 42-1-172 because it was not stated "to a reasonable degree of medical certainty." Appellant argued that without this evidence, the remaining competent evidence would support his claim of sustaining a compensable repetitive trauma injury. The Supreme Court concluded after a review of the Commission's record that the doctor was not Appellant's treating doctor, and his employer sought a medical "opinion" to decide the compensability of Appellant's claim. In this instance, the Court concluded that the doctor's testimony was indeed an "opinion" within the meaning of the Code, and therefore inadmissible against Appellant in adjudicating his claim. The Court reversed the Commission's decision to admit the doctor's medical opinion and remanded the case to determine whether the remaining competent evidence supported Appellant's claim of injury.

http://j.st/GHb

AFSCME Local 1025 v. Sioux Falls Sch. Dist.

Court: South Dakota Supreme Court

Docket: 25935

November 16, 2011

Judge: Zinter

Areas of Law: Contracts, Government Contracts, Labor & Employment Law

Two unions filed grievances against the Sioux Falls School District, alleging that that the District violated the parties' labor agreements when the District provided 2.5 percent wage increases for the 2008-2009 school year. The District and the Department of Labor denied both grievances as untimely. The circuit court judge concluded that the grievances were timely, and reversed and remanded the matter to the Department to determine the correct percentage wage increase. On remand, the Department concluded that the union members were entitled to a three percent wage increase. The circuit court affirmed. The District appealed. The Supreme Court affirmed, holding (1) the union's grievances were timely; and (2) the union members were entitled to a three percent salary increase, and the District violated the terms of the agreements by implementing a percentage wage increase other than the percentage change in the per student allocation referenced in S.D. Codified Laws 13-13-10.1(4).

http://j.st/GbY

Colson v. Vermont League of Cities & Towns

Court: Vermont Supreme Court

Docket: 2010-245

November 18, 2011

Areas of Law: Family Law, Government & Administrative Law, Labor & Employment Law

"This is a case of avoidable error and its consequences." The Vermont League of Cities and Towns (VLCT), the workers' compensation insurance carrier for the Town of Randolph, settled a compensation claim of Claimant Stacey Colson and paid the settlement amount to the Office of Child Support pursuant to an earlier order that OCS issued to collect Claimant's back child support payments. VLCT failed to deduct the amount of an attorney's fee lien granted by the Commissioner of the Department of Labor (DOL) to claimant’s lawyer. VLCT acted with the understanding that the lawyer would not seek the fee if, as occurred, claimant was awarded a lump-sum compensation amount. The lawyer sought her fee, but VLCT resisted double paying that amount, and the dispute has ended up before the Supreme Court after two decisions from the Commissioner and one from Superior Court. Claimant appealed the Commissioner’s grant of summary judgment to VLCT, in which the Commissioner concluded that VLCT acted appropriately in paying over the entire proceeds of claimant’s workers’ compensation award to OCS. Claimant argued that his attorney's lien had priority over OCS's claim for child support arrearages. He claimed that the Commissioner's findings were incomplete and contradictory, that the Commissioner erred when she determined his attorney’s lien did not have priority, and that DOL should be compelled to enforce his attorney’s lien for fees. Upon review of the applicable legal authority and the trial court record, the Supreme Court found that the OCS lien was first in time and therefore took priority, and affirmed the Commissioner's holding that VLCT could not be required to pay the attorney's fee amount to Claimant's attorney.

http://j.st/G9u

W. Va. Employers' Mut. Ins. Co. v. Summit Point Raceway Assocs.

Court: West Virginia Supreme Court of Appeals

Docket: 101414

November 18, 2011

Judge: Davis

Areas of Law: Contracts, Injury Law, Insurance Law, Labor & Employment Law

Employee submitted a claim for workers' compensation under Employer's policy with Insurer, which claim was paid in full. Employee also filed a deliberate intent lawsuit against Employer. After assuming the attorney's fees and costs associated with defending and settling the action, Employer filed a complaint against Insurer, alleging various claims related to Insurer's denial of coverage in the defense of the deliberate intent action. The circuit court granted Employer's motion for partial summary judgment on its bad faith claim against Insurer and awarded damages to Employer. The Supreme Court reversed, holding (1) Insurer met its obligation under W. Va. Code 23-4C-6 to make deliberate intent coverage available to Employer upon the Employer's voluntary request; and (2) because the language of the policy was plain, and the exclusion of deliberate intent coverage was clear, the circuit court erred in concluding that the policy was ambiguous and therefore resulted in deliberate intent coverage being included in the policy under the doctrine of reasonable expectations.

http://j.st/Gjc

Norfolk S. Ry. Co. v. Higginbotham

Court: West Virginia Supreme Court of Appeals

Docket: 101499

November 23, 2011

Judge: Benjamin

Areas of Law: Business Law, Injury Law, Labor & Employment Law, Legal Ethics

Employee of a railway company was accused by his Employer of stealing rail. After it was discovered that Employee was involved in the removal and sale of the rail, Employee's employment was terminated. An arbitration panel reinstated Employee's employment the next year. Employer then submitted the matter to an assistant prosecutor. Employee was never arrested or incarcerated. Employee subsequently sued Employer for malicious prosecution. During the trial, the circuit court granted Employee's motion for judgment as a matter of law on the issue of whether Employer had procured his prosecution, which was one element of his required proof. The jury then returned a verdict in favor of Employee. The circuit court denied Employer's motions for judgment as a matter of law, new trial, or remittitur. The Supreme Court reversed the circuit court's order denying Employer's post-trial motions, holding that the circuit court committed reversible error by determining as a matter of law that Employer procured the malicious prosecution of Employee where testimony of the assistant prosecutor directly contradicted the proposition that Employer had a level of control over the prosecution amounting to procurement. Remanded for a new trial.

http://j.st/Gtv

PNGI Charles Town Gaming, LLC v. Reynolds

Court: West Virginia Supreme Court of Appeals

Docket: 101503

November 18, 2011

Judge: Workman

Areas of Law: Business Law, Commercial Law, Constitutional Law, Labor & Employment Law

The Racing Commission suspended certain jockeys' occupational permits for thirty days and imposed fines for the jockeys' failure to declare an overweight amount. Afterwards, PNGI Charles Town Gaming (PNGI), a non-party in the underlying action, excluded the jockeys from its facility. The circuit court (1) entered an injunction and stayed the imposition of sanctions by the Racing Commission until the conclusion of a hearing before the Commission; and (2) extended the injunction and the stay to include PNGI, preventing PNGI from excluding the jockeys from PGNI's premises pending the outcome of the jockeys' administrative appeal. The Supreme Court affirmed, holding (1) an ejection of a permit holder by a racing association or its stewards is subject to review by the Commission, and therefore, the jockeys, as permit holders, had the right to appeal the ejection, and PNGI was bound by the Commission's decision, subject to judicial review; and (2) PNGI waived its assigned errors regarding the injunction and stay.

http://j.st/Gjw