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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.

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

Speech critical of superior not always protected by the First Amendment

Posted on January 11, 2010
Speech critical of superior not always protected by the First AmendmentSheppard v Beerman, 822 F.Supp. 931, Affirmed, 317 F.3d 351*If a public employee criticizes his or her superior or supervisor, to what extent are the employee's statements protected by the First Amendment's guarantee of free speech? This was the central issue in the Sheppard case...

BOCES not entitled to claim Eleventh Amendment immunity if sued in federal courts

Posted on January 11, 2010
BOCES not entitled to claim Eleventh Amendment immunity if sued in federal courtsCarrie Gorton v Bruce Gettel and Sullivan County BOCES, USCA, 2nd Circuit, Docket # 17-3190-cvCarrie Gorton filed a complaint in Federal District Court alleging that during her two years of employment as a counselor and recruiter at Sullivan County BOCES she was harassed repeatedly by Bruce Gettel, a fellow

Employee organization?s duty of fair representation

Posted on January 11, 2010
Employee organization?s duty of fair representationCox v Subway Surface Supervisors Association, et al., 2010 NY Slip Op 00076, decided on January 7, 2010, Appellate Division, First DepartmentThis decision makes two important points with respect to a union?s duty of fair representation:1...

Disciplinary penalty vacated because nothing in the record establishing a relation between the charges and the penalty imposed

Posted on January 08, 2010
Disciplinary penalty vacated because nothing in the record establishing a relation between the charges and the penalty imposedMatter of Langler v County of Cayuga, 2009 NY Slip Op 09886, decided on December 30, 2009, Appellate Division, Fourth Department Cayuga County Sheriff's Department Lieutenant James Langer was charged and found guilty of a

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Correction officer dismissed after being found guilty of fraternizing with an inmate

Posted on January 08, 2010
Correction officer dismissed after being found guilty of fraternizing with an inmateNYC Dept. of Corrections v Baker, OATH Index #556/10Doreen Baker, a New York City correction officer, is charged with engaging in undue familiarity with an inmate in violation of the Department?s rulesALJ Alessandra Zorgniotti ruled that the Department proved that Baker received over one hundred telephone calls

No private right of action against ?state actors? pursuant to 42 USC 1981, the Civil Rights Law

Posted on January 08, 2010
No private right of action against ?state actors? pursuant to 42 USC 1981, the Civil Rights LawMcGovern v Philadelphia, USCA Third Circuit, No. 08-1632The McGovern decision holds that employees of a municipality may not sue the City of Philadelphia pursuant to 42 USC 1981 for alleged race discrimination...

Applying the ?the preponderance of the evidence standard? in an administrative disciplinary action

Posted on January 08, 2010
Applying the ?the preponderance of the evidence standard? in an administrative disciplinary actionWilliams v Nicoletti, 295 A.D.2d 353City of White Plains motor equipment operator Robert Williams held a New York State Commercial Driver's License. The City had Williams submit to a random drug test because, it contended, federal law required the City to conduct random drug testing of its employees

Employee has a duty to answer job-related inquiries notwithstanding the advice of his or her attorney not to respond to such questions

Posted on January 08, 2010
Employee has a duty to answer job-related inquiries notwithstanding the advice of his or her attorney not to respond to such questionsDelgado v Kerik, 294 A.D.2d 227One of the issues in the Delgado case concerned the duty of a public officer or employee to answer questions directly related to the performance of his or her duties in the course of an administrative investigation or official

Honoring health insurance claims

Posted on January 08, 2010
Honoring health insurance claims filed by a former employee following his or her termination Schimer v Town of Harrison, 294 AD2d 347 Clearly, an employee enrolled in his or her employer's health insurance plan is able to file a claim for benefits while employed...

Termination of special police officers appointed by a town

Posted on January 07, 2010
Termination of special police officers appointed by a townO'Donnell v Ferguson, 2009 NY Slip Op 09766, Decided on December 30, 2009, Appellate Division, Fourth Department In 2000 John O?Donnell, a former police officer employed by the Town of Evans, sued the Town alleging that his employment was terminated in violation of his constitutional rights of free speech and due process, and in violation

Arbitration of contract grievance stayed upon finding that any remedy provided by the arbitrator would violate public policy

Posted on January 07, 2010
Arbitration of contract grievance stayed upon finding that any remedy provided by the arbitrator would violate public policyMatter of New York State Correctional Officers & Police Benevolent Assn., Inc. v New York State Dept. of Civ. Serv., 009 NY Slip Op 10026, Decided on December 31, 2009, Appellate Division, Third DepartmentThe New York State Correctional Officers & Police Benevolent Assn...

Incarceration does not excuse employee?s

Posted on January 07, 2010
Incarceration does not excuse employee?s being AWOLNew York City Department of Sanitation v Emma, OATH Index #1034/09The Department of Sanitation filed disciplinary charges against one of its workers, Salvatore Emma, alleging that Emma had ?continuously absent without leave for several months...

Limitations on the questioning of witnesses by administrative hearing officers

Posted on January 07, 2010
Limitations on the questioning of witnesses by administrative hearing officersBretton v State of New York, 294 A.D.2d 226An administrative hearing officer has great latitude in his or her conducting a hearing but there are limits as the Bretton decision demonstrates...

Considering the employee?s personnel record in determining the severity of the disciplinary penalty severity of the disciplinary penalty to be imposed

Posted on January 07, 2010
Considering the employee?s personnel record in determining the severity of the disciplinary penalty to be imposedWinters v Lakeland CSD, 295 A.D.2d 355, Reversed, 99 N.Y.2d 549Lakeland Central School District Head Custodian Hugh Winters was found guilty of a number of charges alleging misconduct, incompetence, and insubordination including his "removing and photocopying a document from the school

Former NYC employee fined $10,000 by the NYC Conflicts of Interest Board

Posted on January 07, 2010
Former NYC employee fined $10,000 by the NYC ConflictsConflicts of Interest Board v Smart, OATH Index No. 2588/09In June 2009, ALJ Kara Miller found that a former City employee, Pauline Smart, violated the City Conflicts of Interest Law by using her position as an eligibility specialist to obtain personal information about a welfare recipient which the specialist used to obtain a cell phone

Employee?s right to privacy to be decided on a case-by-case basis

Posted on January 07, 2010
Employee?s right to privacy to be decided on a case-by-case basisCooksey v Boyer, 289 F.3d 513If the employer discloses that a public employee is under treatment related to his or her mental health, has the employer violated the individual's "constitutional rights to privacy and substantive due process...

The statutory construction of a

Posted on January 06, 2010
The statutory construction of a law is to be determined by the courts, not the administrative agency administering the lawMatter of Suffolk County Fire Academy Vocational Educ. & Extension Bd. v New York State, 2009 NY Slip Op 09591, Decided on December 24, 2009, Appellate Division, Third DepartmentThe Suffolk County Fire Academy Vocational Education & Extension Board is a vocational institution

Arbitration may survive the removed of a provision mandating arbitration from a collective bargaining agreement if subsumed in another contract clause

Posted on January 06, 2010
Arbitration may survive the removed of a provision mandating arbitration from a collective bargaining agreement if subsumed in another contract clause Matter of Capital Dist. Transp. Auth. v Planz, 2009 NY Slip Op 09580, Decided on December 24, 2009, Appellate Division, Third DepartmentThe Appellate Division noted that the fact that a provision set out in the prior collective bargaining

Probationer has the burden of demonstrating his or her dismissal during probation was not made in good faith or for an impermissible reason

Posted on January 06, 2010
Probationer has the burden of demonstrating his or her dismissal during probation was not made in good faith or for an impermissible reasonMatter of Conboy v Felton, 2009 NY Slip Op 10022, Decided on December 31, 2009, Appellate Division, Third DepartmentKarl J...

Confidentiality of disciplinary records based on an agreement not to disclose their contents

Posted on January 06, 2010
Confidentiality of disciplinary records based on an agreement not to disclose their contents LaRocca v Jericho UFSD, 220 AD2d 424The School District had filed disciplinary charges against the principal of one of its schools. Subsequently the Jericho School Board authorized its superintendent to negotiate a settlement that would dispose of the matter...

Applicant disqualified for unemployment insurance benefits after electing to take early retirement

Posted on January 06, 2010
Applicant disqualified for unemployment insurance benefits after electing to take early retirementPullano v Comm. of Labor, 294 A.D.2d 747The Pullano case cautions that unemployment insurance benefits are not available to individuals who elect to take advantage of "early retirement" incentives...

Appointing authority may decline to initiate disciplinary action against an individual after investigating a complaint alleging misconduct

Posted on January 06, 2010
Appointing authority may decline to initiate disciplinary action against an individual after investigating a complaint alleging misconductAppeal of J.K., Commissioner of Education Decision 14,705, Appeal of Schachter, Commissioner of Education Decisions No...

Assigning one individual to serve as the principal at two schools simultaneously

Posted on January 06, 2010
Assigning one individual to serve as the principal at two schools simultaneously Branch v Olean City School District, Commissioner of Education Decision 14,704In these times of financial hardship, some school districts may be considering combining certain administrative positions whereby one individual assumes oversight duties for activities that were previously assigned to two or more

Volunteers are not employees for the purposes of Title VII

Posted on January 06, 2010
Volunteers are not employees for the purposes of Title VIIYork v NYC Bar Association, 286 F.3d 122Alexandra York sued the New York Bar Association claiming that it had unlawfully discriminated against her in employment in violation of Title VII of the Civil Rights Act of 1964 [42 USC 2000e], the New York State Human Rights Law [Executive Law Section 290] and the New York City Administrative Code

Method of computing adjunct professors? compensation held a past practice

Posted on January 05, 2010
Method of computing adjunct professors? compensation held a past practiceMatter of Fashion Inst. of Tech. v New York State Pub. Empl. Relations Bd., 2009 NY Slip Op 09510, Decided on December 22, 2009, Appellate Division, First DepartmentThe New York State Public Employment Relations Board affirmed the decision of its Administrative Law Judge finding that the Fashion Institute of Technology [FIT]

Notifying educators that they are assumed of continued employment for the new academic year

Posted on January 05, 2010
Notifying educators that they are assumed of continued employment for the new academic yearMatter of Lincoln v Commissioner of Labor, 66 AD3d 1259Labor Law �590 [10] provides that a professional employed by an educational institution is not eligible to receive unemployment insurance benefits between two successive academic years if "there is a reasonable assurance that the claimant will perform

Providing for union or employee organization leave

Posted on January 05, 2010
Providing for union or employee organization leave Matter of the Erie County Sheriff's Police Benevolent Association, 33 PERB 4570Provisions for "union leave" or ?employee organization leave,? either with or without pay, are included in many Taylor Law agreements...

Disciplinary Punishment - Disparate Treatment

Posted on January 05, 2010
Disciplinary Punishment - Disparate Treatment Source: AELE Law Enforcement Legal Center, http://www.aele.org/, Reproduced with permission. Copyright � 2009 AELEAELE Law Enforcement Legal Center reports that an appellate court upholds the termination of a corrections officer who failed to search a laundry truck leaving the jail; an inmate was hiding in a laundry basket and escaped...

Transferring unit work

Posted on January 05, 2010
Transferring unit workMatter of Yonkers Federation of Teachers, U-27599Adapted from decision summaries prepared by Public Employment Relations Board staff membersAn PERB Administrative Law Judge found that the School District transferred unit work that had been performed by the union to a nonunit employee in violation of the Act...

Charging party?s unexplained failure to appear at PERB hearing

Posted on January 05, 2010
Charging party?s unexplained failure to appear at PERB hearing Adapted from decision summaries prepared by Public Employment Relations Board staff membersWhere the charging party failed to attend the prehearing conference and failed to advise PERB thereafter of his desire to have his case proceed, a motion to dismiss for abandonment of the claim was granted...

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