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Labor & Employment Law

New York Public Personnel Law

Summaries of and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State.

Post Frequency: 10.2/day

Last Entry: November 05, 2020 at 10:02:02

Public employers may abolish and, or, consolidate positions for sound economic reasons, so long as the decision is not motivated by bad faith

Posted on April 09, 2010
Public employers may abolish and, or, consolidate positions for sound economic reasons, so long as the decision is not motivated by bad faithAppeal of Sherman Roberts, Audrey Lewis, Calvin Wilson, Sally Neumann, Yolanda Howard, Thomas Wright and Gina Talbert from actions of the Board of Education of the Wyandanch Union Free School District regarding the abolition of positions, Decisions of the Commissioner of Education, Decision No...

Payment for unused vacation credit upon separation from employment

Posted on April 09, 2010
Payment for unused vacation credit upon separation from employmentBaksh v Town/Village of Harrison, 38 A.D.3d 808Mohamed R. Baksh sued the Town and Village of Harrison [Harrison] to recover damages for an alleged ?breach of contract? after the Town rejected his demand for payment of the monetary value of his accrued ?compensatory time? following his termination...

Applying the terms of a disciplinary settlement agreement

Posted on April 09, 2010
Applying the terms of a disciplinary settlement agreementPerretti v NYC Transit Auth., App. Div., 3rd Dept., 283 A.D.2d 737The New York City Transit Authority challenged a decision by the Unemployment Insurance Appeals Board granting one of its employees, Frank P...

New and different duties must be added to a job description to effect a change in the essential character of the position

Posted on April 08, 2010
New and different duties must be added to a job description to effect a change in the essential character of the positionAmerican Federation of State, County And Municipal Employees, Local 264 and Buffalo Municipal Housing Authority., PERB U28065 by Administrative Law Judge PolandSource: PERB staff reportsPERB Administrative Law Judge Poland ruled that the Buffalo Municipal Housing Authority did not violate its bargaining obligation when it unilaterally changed the Assistant Superintendent of Maintenance job specification to include a description of duties performed by employees in the title...

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The 12-month -1,250 work hours eligibility requirement for FMLA leave not tolled while employee is on FMLA leave during that 12-month period

Posted on April 08, 2010
The 12-month - 1,250 work hours eligibility requirement for FMLA leave not tolled while employee is on FMLA leave during that 12-month periodSource: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/Copyright � 2010. All rights reserved by Carl C...

Payment for time spent changing to and from uniform not required under the Fair Labor Standards Act

Posted on April 08, 2010
Payment for time spent changing to and from uniform not required under the Fair Labor Standards ActBamonte v. Mesa, No. 08-16206 U.S. 9th Circuit Court of Appeals, March 25, 2010City of Mesa, Arizona, police officers alleged that the city violated the Fair Labor Standards Act (FLSA) when it refused to compensate them for the time the officers spent the donning and doffing of their uniforms and accompanying gear...

Negotiating for health insurance benefits in retirement

Posted on April 08, 2010
Negotiating for health insurance benefits in retirementMcDonald PBA v City of Geneva, Ct. of Appeals, 92 N.Y.2d 326The Court of Appeals, in a ruling that could significantly affect a retiree?s participation in a municipality?s health insurance program, concluded that ?there is no legal impediment to the municipality?s unilateral alteration of the past practice? regarding its providing health insurance benefits to its retirees and their dependents where there was neither a Taylor Law agreement nor some other contract or provision of law granting retirees a vested right to such a benefit...

Disciplinary charges allege use of inappropriate language

Posted on April 08, 2010
Disciplinary charges allege use of inappropriate languageBernstein v Norwich City School District, 282 A.D.2d 70, leave to appeal denied, 96 N.Y.2d 937In May 1998 Richard C. Bernstein, a tenured English teacher in the Norwich High School was charged with conduct unbecoming a teacher, insubordination, neglect of duty and incompetence for using what the district regarded as inappropriate verbiage in the course of teaching a lesson...

Suspension without pay

Posted on April 08, 2010
Suspension without payVargo v Safir, 291 A.D.2d 268Although the Appellate Division did not have any difficulty in affirming New York City Police Commissioner Howard Safir's imposing the penalty of dismissal after finding police officer James Vargo guilty of misconduct, it did find that there was a question as to whether Vargo was entitled to back pay...

Breach of contract action claiming a violation of the terms of a stipulation dismissed for ?failure to state a cause of action?

Posted on April 07, 2010
Breach of contract action claiming a violation of the terms of a stipulation dismissed for ?failure to state a cause of action?Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO v Town of Riverhead, 2010 NY Slip Op 30709(U), March 19, 2010, Supreme Court, Suffolk County, Docket Number: 44050/2008, Judge: Joseph Farneti, [Not selected for inclusion in the Official Reports]CSEA, alleging that the Town* had violated the terms of a Stipulation by which the parties had resolved a prior contract grievance under a collective bargaining agreement by and between the ?Town Of Riverhead? and ?CSEA, Local 1000 AFSCME, AFL-CIO,? initiated legal action against the Town that Judge Joseph Farneti characterized as ?an action sounding in breach of contract...

Determining elements when considering the ?community of interest? of academic staff of a college in a negotiating unit

Posted on April 07, 2010
Determining elements when considering the ?community of interest? of academic staff of a college in a negotiating unitCounty of Nassau And Nassau Community College and Adjunct Faculty Association at Nassau Community College and Nassau Community College Federation of Teachers, CP-1123 & CP-1140Source: PERB Staff reportsIn this action, PERB Administrative Law Judge Blassman granted the County?s placement petition which sought, as amended, to place the position of ?LINCC lecturer? in the unit represented by the Nassau Community College Federation Of Teachers [NCCFT]...

NY Civil Service Law on your iPhone or iPod Touch

Posted on April 07, 2010
NY Civil Service Law on your iPhone or iPod TouchOffered by http://appshopper.com/,[N.B. ? Appshopper is not affiliated with Apple, Inc.]For $5.99 you can have the New York Civil Service Law on your iPhone or iPod TouchThis application, offered by Apppshopper, provides the full text of the New York Civil Service Law in a searchable format for your iPhone or iPod Touch...

Disciplinary hearings held in absentia

Posted on April 07, 2010
Disciplinary hearings held in absentiaMari v Safir, App. Div., 1st Dept., #285, Feb. 19, 2002 291 A.D.2d 298The Mari decision demonstrates that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing...

Removing dismissed disciplinary charges from an employee?s records

Posted on April 07, 2010
Removing dismissed disciplinary charges from an employee?s recordsOlivares v Board of Educ. of the City School Dist. of the City of New York, 39 A.D.3d 230Francisco Olivares, a tenured teacher employed by the New York City Department of Education (DOE), sued in effort to have references to misconduct charges filed against him that had been dismissed expunged from the files of the DOE?s Administrative Trial Unit (ATU)...

Dismissal for misconduct bars UI benefits

Posted on April 07, 2010
Dismissal for misconduct bars UI benefitsMorgan v Comm. of Labor, App. Div., 3rd Dept., 291 A.D.2d 701Michael Morgan was employed as a traffic enforcement agent for the New York City Department of Citywide Administration.In the course of an investigation that followed the arrest of an individual found with a forged New York City Police Department parking permit in his possession, Morgan admitted that he had obtained the forged parking permit from a third party and that he had given it to the person who had been arrested...

Failing to continue GML �207-c benefits during the pendency of a challenge to a medical determination that the individual is able to return to work

Posted on April 06, 2010
Failing to continue GML �207-c benefits during the pendency of a challenge to a medical determination that the individual is able to return to workMatter of Westchester County Correction Officers Benevolent Assn., Inc. v County of Westchester, 2010 NY Slip Op 02572, Decided on March 23, 2010, Appellate Division, Second DepartmentThe Westchester County correction officers [COs] sustaining an injury in the line of duty and unable to perform their duties as a result of such an injury are eligible General Municipal Law �207-c benefits...

Employee terminated for cause following a disciplinary hearing disqualified from receiving unemployment insurance benefits

Posted on April 06, 2010
Employee terminated for cause following a disciplinary hearing disqualified from receiving unemployment insurance benefitsMatter of Czosek v Cheektowaga-Sloan Union Free School Dist., 2010 NY Slip Op 02462, Decided on March 25, 2010, Appellate Division, Third DepartmentPaul V...

Commissioner of Education lacks jurisdiction to consider �310 appeals challenging administrative determinations of Education Department administrators

Posted on April 06, 2010
Commissioner of Education lacks jurisdiction to consider �310 appeals challenging administrative determinations of Education Department administratorsMatter of the Castleton Public Library, Decisions of the Commissioner Number 16035The Castleton Public Library appealed a determination of the New York State Education Department and the New York State Library that it was formed to serve the people of the Village of Castleton and that only residents of the Village are eligible to serve on the Board of Library Trustees...

Employees that supervised, issued evaluations for and disciplined other employees had a conflict of interest precluded ?a common community of interest

Posted on April 06, 2010
Employees that supervised, issued evaluations for and disciplined other employees had a conflict of interest precluded ?a common community of interest?Patrolman?s Benevolent Association of Southampton Town, Inc. and Town Of Southampton, PERB CP-1168. Source: PERB Staff reportPERB Administrative Law Judge Blassman dismissed the PBA?s unit clarification and/or unit placement petition which sought a determination that the position of ?police officer part-time/seasonal? (PSPO) is or should be placed in the negotiating unit it represents...

Part-time service may affect eligibility for Jarema credit for the purposes of determining satisfying probationary service requirements

Posted on April 06, 2010
Part-time service may affect eligibility for Jarema credit for the purposes of determining satisfying probationary service requirementsDecisions of the Commissioner of Education, 14,557, MacDonald and the North Tonawanda City School District, Decisions of the Commissioner of Education, 14,557Arthur G...

Board member acting on the advice of counsel cannot be deemed to have engaged in willful misconduct

Posted on April 05, 2010
Board member acting on the advice of counsel cannot be deemed to have engaged in willful misconductApplication of Carol Gillen for the removal of Nicholas Mauro as a member of the Board of Education of the City School District of The City of Middletown, Decisions of the Commissioner of Education, Decision No...

Combination of employee statements and medical opinion may establish serious health condition

Posted on April 05, 2010
Combination of employee statements and medical opinion may establish serious health condition, third circuit holdsSource: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/Copyright � 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission...

Using stipulated records in support of claims and defenses before an PERB Administrative Law Judge urged by PERB

Posted on April 05, 2010
Using stipulated records in support of claims and defenses before an PERB Administrative Law Judge urged by PERBMatter of Niagara Charter School, PERB Case U-27727Source: PERB Staff reportsThe Board remanded this case to an Administrative Law Judge for further processing aimed at clarifying the stipulated record with respect to an improper practice charge alleging that a charter school violated �209-a...

Seeking payment for attorney fees encumbered by a state officer or employee in defending a criminal complaint involving the individual as a defendant

Posted on April 05, 2010
Seeking payment for attorney fees encumbered by a state officer or employee in defending a criminal complaint involving the individual as a defendantPolice Benevolent Assoc. v. Vacco, App. Div., 253 A.D.2d 920; Leave to appeal denied, 92 N.Y.2d 818Robert C...

Self-publications of disciplinary charges filed against the employee by the employee's attorney

Posted on April 05, 2010
Publications of disciplinary charges filed against the employee by the employee's attorneyHendrick Hudson CSD v Falinski, App. Div., 254 A.D.2d 458The Hendrick Hudson Central School District filed disciplinary charges against elementary school principal Joanne Falinski...

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

Posted on April 05, 2010
Employer rejects hearing officer's dismissal of two of three charges of misconduct, finding employee guilty of all chargesMatter of Thibodeau v Northeastern Clinton Cent. School Bd. of Education, 39 A.D.3d 940Northeastern Clinton Central School bus driver Michael Thibodeau was served with disciplinary charges pursuant to Civil Service Law �75 alleging misconduct, incompetence and insubordination...

Irresistible impulse as a defense in an administrative disciplinary action

Posted on April 05, 2010
Irresistible impulse as a defense in an administrative disciplinary actionPerry v Comm. of Labor, App. Div. 3rd Dept., 283 A.D.2d 754Readers may recall that in the 1959 movie Anatomy of a Murder actor James Stewart successfully defended an individual accused of murder on the theory his client's actions were the product of an "irresistible impulse...

Not preserving records that an employee claims might help in defending disciplinary charges filed against the individual may not be a fatal defect

Posted on April 05, 2010
Not preserving records that an employee claims might help in defending disciplinary charges filed against the individual may not be a fatal defectThomas v Mt. Vernon P.D., App. Div., 249 A.D.2d 483, Motion to appeal denied, 94 N.Y.2d 763The Thomas case raises an interesting question: What is the impact of an employer?s failure to preserve records that an employee may believe helpful in a disciplinary hearing?Robin Thomas was found guilty of failing to provide advance notice to the Mount Vernon Police Department that she would be absent from work on May 4, 1995...

The 2010 edition of The Discipline Book, incorporating summaries of relevant decisions issued through December 31, 2009, is now available

Posted on April 02, 2010
The Discipline Book is a 1,000+ page electronic handbook for administrators, union officials and attorneys involved in disciplinary actions taken against public officers and employees employed by New York State and its political subdivisions under the State's Civil Service Law, the Education Law and disciplinary grievance procedures negotiated pursuant to the Taylor Law...

NYPPL will resume postings of case

Posted on March 29, 2010
NYPPL will resume postings of case summaries on April 5, 2010.

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