Labor & Employment Law

Focus of cases summarized January - June 2008
Click on the title to access the summary published in New York Public Personnel Law

A provisional employees right to a permanent appointment is limited

Abandonment of a position in the public service

Abandonment of position

Ability to perform light duty permits discontinuation of GML Section 207-c benefits

Absence during a probationary period

Accepting gratuities for performing official duties

Accepting job with a vendor while reviewing invoices submitted by the same vendor not permitted

Accident report prepared by individual could prove crucial in claiming benefits

Administration of the Civil Service Law

Administrative adjudications

Age discrimination

Agreeing to a disciplinary suspension without pay

Agreeing to submit to random testing for unlawful drugs

ALJ rejects inmate testimony as unreliable in proving disciplinary charges

Alter Medical Certification, Lose FMLA Protections
Suspension without pay determined by ?pay days? rather than ?calendar days?

Alternatives to Section 75 disciplinary procedures

An ambiguity in a settlement agreement resolved against the drafter of the agreement

An appeal to the Commissioner of Education must show a clear legal right to the relief sought

Annual performance evaluation procedure

Anticipating eligibility in promotion test

Appeal of T.W. from action of the Board of Education of the Naples Central School District filing disciplinary charges against him

Appealing a Section 75 settlement agreement

Appellate Division lacked ?discretionary authority? to vacate the disciplinary penalty imposed by the appointing authority

Applicant failing to meet deadline for teaching certificate must meet new standard

Applicant has the burden of proving wrongful denial of employment

Application for retroactive credit/membership in the NYS Employees? Retirement System based on uncompensated service rejected

Applying statutory presumptions in resolving a workers? compensation claim

Applying the ?Rules of Evidence? in arbitration proceedings

Applying the confidentiality provisions of Civil Rights Law §50-a

Applying the terms of a disciplinary settlement agreement

Appointing authority?s rejection of the hearing officer?s recommendation rejected

Appointment from a preferred list

Appointment from a preferred list

Arbitration award can being vacated only if shown to be irrational, violative of strong public policy or exceeds the arbitrator?s powers

Arbitration award modified after arbitrator found to have exceed his authority

Arbitration award vacated pursuant to the ?public policy exception?

Arbitrator fines rather than fire a teacher following her successful treatment for substance abuse

Arbitrator?s award vacated after being judged to violate strong public policy

Arbitrator?s misconduct must be demonstrated by clear and convincing proof

Arbitrator?s misconduct must be demonstrated by clear and convincing proof

Arbitrator?s ruling employee worked ?out-of-title? does not violate public policy

Asking for a kiss found to be unprofessional conduct

Assigning exclusive bargaining unit work to non-unit workers subject to negotiation

Availability of absolute or qualified privilege in judicial and quasi-judicial actions

Back pay award excluded in determining employee?s retirement allowance

Back pay award is based on salary of position to which employee was demoted

Barring a former employee from property

Binding arbitration proposals raised in the course of collective bargaining

Blue wall of silence

Bringing discredit on the employer

California Workers? Compensation Insurer and School District Immune From Liability For Video Taping Teacher At Her Wedding

Car Failure is Not an FMLA-Covered Serious Health Condition

CBA may not require an employee to waive the right to sue in a federal forum

Certain demands for records related to an investigation to be honored

Certain demands for records related to an investigation to be honored

Certificate of relief from civil disabilities

Certification of the eligible list and the rule of three [Civil Service Law Section 61.1]

Challenging a change in the work schedule

Challenging the abolishment of a position in the public service

Changing the terms and conditions of employment

Chronic health condition not always a disability within the meaning of the ADA

Chronic lateness disqualifying misconduct for Unemployment Insurance purposes

Circuit Court of Appeals, 1st Circuit -- court review of labor arbitration is among narrowest known in the law

City did not violate FLSA by requiring employees to carry official records while commuting between home and work

City of New York Sanctioned In Employment Discrimination Case Involving Teacher Due To Repeated Failures To Comply With Discovery

City's Pre-Employment Drug Testing Requirement Unconstitutional for Non-Safety-Sensitive Library Position

Civil Service Commission overturns applicant?s disqualification for appointment

Civil Service Commission reverses administrative decision disqualifying applicant for promotion examination

Collective bargaining agreement cannot provide provisional employees tenure

Collective bargaining designation

Commissioner of Human Rights may not order employee?s permanent appointment

Concerning Civil Service Law §75; Education Law §3020-a; and Taylor Law contract disciplinary procedures

Concerning CSL Section 71 and GML Sections 207-a and, or, 207-c

Conducting a private business while ?off-duty?

Conducting an administrative hearing

Confirming an arbitration award

Confirming an arbitrator's award

Confrontational behavior

Confrontations with a superior

Considering past practice in determining an arbitration award

Considering statements in a brief

Constructive dismissal

Constructive termination

Contempt proceeding used to enforce a court order directing reinstatement

Continuation in position upon jurisdiction reclassification

Continued employment as a provisional

Continuing §207-c benefits if an individual refuses to perform light duty

Contract grievance procedure held inapplicable in Article 78 disciplinary appeal

Contract grievance procedure held inapplicable in Article 78 disciplinary appeal

Contracting out work performed by employees in a negotiating unit

Contracting with consultants

Correction officers disciplined for associating with the Outlaws Motorcycle Club

Counseling memo placed in educator?s personnel file not a disciplinary action
Position classification and reclassification decisions not subject to arbitration

Court finds substantial evidence supports disciplinary penalty imposed by employer

Court hold that the terms of a collective bargaining agreement permits employee organization to demand arbitration of a grievance on behalf of retiree

Court of Claims lacks jurisdiction to hear workers? compensation benefit appeal

Court of Claims lacks jurisdiction to review back pay administrative decision

Court review of university decisions concerning the appointment of faculty limited

Court review of university decisions concerning the appointment of faculty limited

Courts Do Not Sit As Super Personnel Departments

Courts will not defer to agency?s "expertise" when resolving pure questions of law

Credibility determinations in a disciplinary hearing

Credibility of witness

Credit for leave paid by employer in workers? compensation benefit claim

Criminal record of an applicant not an automatic bar to appointment

D.C. Circuit Issues Major Decision Holding Health Benefits For Future Retirees Is A Mandatory Subject

Decision to terminate a probationer based on supervisors? reports

Declaratory rulings - collective bargaining

Defendant in a criminal action cannot prevent a related administrative disciplinary action from going forward

Defending and indemnifying employees

Deferring imposing a disciplinary penalty equivalent to disciplinary probation

Deferring imposing a disciplinary penalty equivalent to disciplinary probation
Section 75 disciplinary action not appropriate where mental disability is involved
Confidential ?warning memorandum? sent to employee

Demand for arbitration

Demanding a letter of apology claimed to impinge on the individual?s constitutionally protected speech

Demanding negotiations concerning changes in the employer's payroll system

Denial of a ?materially more advantageous? position may constitute an adverse employment action for the purposes of Title VII

Denial of tenure because of union activity

Designation of a disciplinary hearing officer

Designation of an employee as ?confidential?

Determination of negotiating exclusion is a proper subject for local legislation

Determining an appropriate penalty for misconduct

Determining if a grievance was timely filed

Determining the ?prevailing rate of wages? for positions in a negotiating unit

Determining the compensation of a village chief of police

Determining the timeliness of a grievance did not exceed the arbitrator?s authority

Disciplinary action claimed filed with malice

Disciplinary action for misconduct off the job

Disciplinary action for off-duty misconduct

Disciplinary action results in allegations of wrongful discharge

Disciplinary arbitration findings affect unemployment insurance claims

Disciplinary charges must provide information sufficient to prepare a defense

Disciplinary dismissal not discrimination

Disciplinary hearing conducted in absentia

Disciplinary hearing procedures

Disciplinary hearings held in absentia

Disciplinary penalty of termination vacated as ?shocking to one?s sense of fairness?

Disciplinary penalty reduced by court

Disciplinary penalty vacated as too harsh

Disciplinary probation

Disciplinary probation

Disciplinary rulings and penalty recommendations issued by New York City OATH administrative law judges

Disciplinary settlement agreement may preserve one or more allegations for subsequent action

Disciplinary settlement payment not annual salary for retirement purposes

Discipline Book

Discipline for just cause

Discipline settlements

Discontinuing Section 207-a salary supplement paid to retired firefighter not authorized by statute

Discontinuing Section 207-c benefits

Discrimination - Title VII protection from retaliation for cooperating with employer's internal sexual harassment investigation--Certiorari Granted

Dismissal and workers' compensation leave

Dismissal for misconduct bars UI benefits

Dismissal for pre-employment misconduct

Dismissal of a provisional employee

Disqualifying an applicant for appointment by a civil service commission

Disqualifying misconduct bars unemployment insurance award

Distinguishing between ?confidential employees? and ?confidential positions? Status as head of a police department ? not the individual?s title -- triggers GML 207-m benefits

Distinguishing between a ?traineeship? and a ?probationary period?

Division of Human Rights to determine validity of a ?release? signed by an employee alleging unlawful discriminatory practice

DOL Issues Temporary Mandatory FMLA Poster Addressing Military Family Leave Amendments

Drafting disciplinary charges

Drug dependency not a disability under New York?s Human Rights Law

Due process

Due process and negotiated agreements

Due process in administrative hearings requirements

Due process requirements - filing an employer?s application for disability retirement

Duty of fair representation

Eavesdropping

Election of remedies

Eligibility for Jarema credit

Employee acquitted of criminal and disciplinary charges entitled to back pay

Employee disciplined for off-duty misconduct

Employee fired for filing a fraudulent claim with his private insurance company

Employee found guilty of leaving an inappropriate voicemail message

Employee found guilty of willingly taking part in a fight

Employee misconduct

Employee on medical leave terminated because of an unacceptable personal risk to himself and safety concerns for others

­­­­­­­­­­­­­­­­­­­­Employee organization status

­­­­­­­­­­­­­­­­­­­­Employee organization status
Matter of Connetquot Clerical Association, 31 PERB 3057

Employee personnel files used to set penalty

Employee received all retirement and salary benefits upon ordered military service

Employee sues public employer for alleged malicious prosecution

Employee terminated after accessing pornographic material using employer?s computer

Employee terminated after being AWOL for six months

Employee terminated after being found guilty of soliciting and accepting a gratuity

Employee terminated after failing to follow the employer's policy

Employee terminated after obtaining Red Cross assistance under ?false pretenses?

Employee terminated after violating terms of disciplinary probation

Employee terminated following a disciplinary hearing conducted in absentia

Employee ultimately terminated not entitled to back salary for the period when the penalty to be imposed was being reconsidered

Employee who resigned rather than face disciplinary action denied unemployment insurance benefits based on ?disqualifying misconduct?

Employee?s performing job related ?outside work? ruled a conflict of interest

Employee?s physician permitted to testify at Workers? Compensation Law hearing

Employee?s representative barred from the employee?s psychological examination

Employee?s termination for threatening supervisor sustained by Appellate Division

Employee's complaint that her union refused to pursue a grievance to arbitration dismissed by PERB

Employees May Be Personally Liable For Employment Discrimination Under New York Law

Employees of a non-for-profit working in ?before school? and ?after school? childcare programs serving public school districts are not employees of an

Employees who wrote critical letter engaged in protected activity and his termination was an unfair labor practice

Employees? rights upon the take-over of a BOCES program

Employer cannot impose a disciplinary penalty not provided for by statute or by its own rules or written policies

Employer cannot make unauthorized deductions

Employer Cannot Require That Employee Waive Rights Under A Collective Bargaining Agreement Without Notice To Union

Employer finds employee guilty of charges hearing officer found were not proven

Employer found to have unlawfully discriminated against employee because of age to pay back salary and an award for mental anguish and humiliation

Employer Not Entitled to Diagnosis in FMLA Medical Certification

Employer seeks reimbursement for §207-c benefits paid to injured police officer

Employer to provide provisional employee with name-clearing hearing

Employment-at-will status defeats claim of having a property interest in continued employment

Engaging in governmental service distinguished from public employment

Evaluating conflicting testimony

Excessive absence evidence that individual cannot perform the duties of the position

Exclusive unit work

Executive secretary not covered under Title VII by virture of the personal staff exemption

Exhaustion of administrative remedies

Extension of the probationary period

Failure to appeal

Failure to exhaust administrative remedy bars Article 78 action

Failure to extend a contract of employment

Failure to file an appeal may not always support a claim of malpractice

Failure to maintain a residence within the employer?s geographic jurisdiction deemed disqualifying misconduct for unemployment insurance purposes

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