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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

Tenure by estoppel

Posted on December 15, 2010
Tenure by estoppelYoung v Cashin, 275 AD2d 747, Motion for leave to appeal denied, 96 NY2d 706A New York City Assistant School Principal, Joseph Young, was terminated from his position.Contending that he had attained tenure by estoppel, Young sued, seeking a court order reinstating him to his former position...

Termination during a probationary period

Posted on December 15, 2010
Termination during a probationary periodScott v Workers? Compensation Board, 275 AD2d 877The Scott case demonstrates the general rule that an individual who has been permanently appointed to a position and who is required to serve a probationary period may be terminated without notice and hearing any time after he or she completes the minimum period and prior to the end of the maximum period of probation...

Workers? compensation leave

Posted on December 15, 2010
Workers? compensation leaveSanders v NYC Human Resources Administration, 275 AD2d 873Lavern Sanders, a probationary employee, filed an application for workers? compensation benefits. She also asked for a leave of absence, based upon a physician?s note directing her to cease working...

Dismissal of charges in the course of a Section 75 disciplinary hearing

Posted on December 14, 2010
Dismissal of charges in the course of a Section 75 disciplinary hearingSource: Reader's inquiryFrom time to time, a reader will submit a question concerning a public personnel law issue. One recent question viewed as being of general interest to the readers of this BLOG:"Where is the authority to dismiss administrative disciplinary charges during the hearing process found?"NYPPL does not believe that a hearing officer has any authority to "dismiss" a Section 75 disciplinary charge or specification...

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Applying for disability retirement benefits

Posted on December 14, 2010
Applying for disability retirement benefitsMiata v McCall, 277 AD2d 590Joseph Miata, a Long Island State Parks and Recreation Commission police officer, filed an application for performance of duty disability retirement benefits after he suffered an ankle injury as the result of his tripping while leaving work on August 24, 1995...

Absence from an assigned post

Posted on December 14, 2010
Absence from an assigned postGamma v City of Newburgh, 277 AD2d 236Absence from one?s post is a serious matter as former Newburgh police officer Stephen J. Gamma learned. Gamma was found guilty of charges that he violated both supervisory instructions and the Rules and Regulations of the Department by leaving his duty post without the approval of a superior in his chain of command...

Seeking class action relief in arbitrations

Posted on December 13, 2010
Seeking class action relief in arbitrationsCorrection Officers Benevolent Association v City of New York, 276 AD2d 394May an arbitrator grant relief to a class of employees if but a single individual filed the grievance? This was the critical issue before the Appellate Division, First Department when the Correction Officers Benevolent Association attempted to confirm an arbitration award interpreting a clause in the parties? collective bargaining agreement between the Association and the City of New York providing for military leave with pay...

CSL �75 provides a right to an attorney at a disciplinary hearing but not in course of an investigation before disciplinary charges are served

Posted on December 13, 2010
CSL �75 provides a right to an attorney at a disciplinary hearing but not in course of an investigation before disciplinary charges are servedMatter of Nygard v County of Warren, 2010 NY Slip Op 09060, decided on December 9, 2010, Appellate Division, Third DepartmentThomas Nygard, a Warren County deputy sheriff, was served with disciplinary charges alleging seven acts of misconduct pursuant to �75 of the Civil Service Law...

Eligibility for unemployment insurance

Posted on December 13, 2010
Eligibility for unemployment insuranceGeracitano v Comm. of Labor, 277 AD2d 558Barbara A. Geracitano served as a seasonal employee with the State Department of Parks and Recreation. She typically would apply for unemployment insurance benefits during her off-season...

Disciplinary decision based on evidence obtained using a Global Positioning Systems device challenged

Posted on December 13, 2010
Disciplinary decision based on evidence obtained using a Global Positioning Systems device challengedSource: Item written by Justin Mason published in the Schenectady Gazette, Tuesday, December 7, 2010An article appearing in the December 7, 2010 edition of the Schenectady Gazette reports that disciplinary action taken against a state worker, Michael Cunningham, by his employer, Department of Labor, involved evidence obtained by using a Global Positioning System [GPS] device...

Age requirements and eligibility for taking a test

Posted on December 13, 2010
Age requirements and eligibility for taking a testBeloten v Diamons, 276 AD2d 438The Beloten case involves a relatively novel issue: age qualification for appointment to positions in the competitive class.The case arose after New York City issued an announcement for an examination for firefighter allowing only emergency medical technicians and paramedics [EMTs] not more than 29 years old as of the beginning of the application period to take the examination...

DiNAPOLI WARNS OF A SWEEPSTAKES SCAM USING FAKE STATE CHECKS

Posted on December 10, 2010
DiNAPOLI WARNS OF A SWEEPSTAKES SCAM USING FAKE STATE CHECKS Source: Office of the State ComptrollerNew York State Comptroller Thomas P. DiNapoli today warned of a sweepstakes scam involving fraudulent checks that appear to have been issued by New York State...

In an appeal to the Commissioner of Education the petitioner has the burden of proof and must establish his or her right to the relief requested

Posted on December 10, 2010
In an appeal to the Commissioner of Education the petitioner has the burden of proof and must establish his or her right to the relief requestedAppeal of Wornum seeking the removal of the Superintendent of the Westbury Union Free School District, Decisions of the Commissioner of Education, Decision #16,166Larry D...

Exhausting of Taylor Law contract remedies

Posted on December 10, 2010
Exhausting of Taylor Law contract remediesKaufmann v Rochester CSD, App. Div., Fourth Dept., 275 AD2d 890The Rochester Board of Education attempted to have Susan K. Kaufmann?s lawsuit dismissed on the theory that Kaufmann had not exhausted her administrative remedies because she did not file a contract grievance concerning her complaint...

Responding to Freedom of Information requests

Posted on December 10, 2010
Responding to Freedom of Information requestsMcKethan v NY-NJ Port Authority, Appellate Division, First Dept., 277 AD2d 15William McKethan obtained a court order pursuant to the Freedom of Information Law directing the New York-New Jersey Port Authority [New York Branch] to provide him with certain information...

Loss of a required license or certification bars the incumbent from performing the duties of the position

Posted on December 10, 2010
Loss of a required license or certification bars the incumbent from performing the duties of the positionAgriculture and Markets v Public Employees Federation, App. Div., Third Dept., 277 AD2d 564Holding a valid license is sometimes an essential element to performing the duties of the position...

Overturning arbitrator?s finding would require the court to make new findings of fact and substitute its judgment for that of the arbitrator's

Posted on December 09, 2010
Overturning arbitrator?s finding would require the court to make new findings of fact and substitute its judgment for that of the arbitrator'sKalyanaram v New York Inst. of Tech., 2010 NY Slip Op 08856, decided on December 2, 2010, Appellate Division, First DepartmentAccording to the Appellate Division, ?[a]fter investigating complaints from 37 students alleging that Gurumurthy Kalyanaram, a member the New York Institute of Technology?s faculty had engaged in inappropriate conduct during class,* the Institute sent a letter to Kalyanaram notifying him that, pursuant to the collective bargaining agreement (CBA) governing faculty employed by New York Institute of Technology, "you are hereby dismissed, effective as of May 21, 2007, for engaging in serious professional misconduct...

Collective bargaining after the Taylor Law Agreement expires

Posted on December 09, 2010
Collective bargaining after the Taylor Law Agreement expiresLocal 2562 v PERB, App. Div., Third Dept., 276 AD2d 184, Motion for leave to appeal denied, 96 NY2d 711In the Local 2562 case, the Appellate Division sustained a Public Employment Relations Board [PERB] ruling that held that a nonmandatory subject of collective bargaining, if continued after the expiration of a collective bargaining agreement [CBA] under the Triboro Doctrine [Civil Service Law Section 209-a(1)(e)], is converted into a mandatory subject of collective bargaining...

Timely appeal to the Commissioner of Education provides the pre-litigation Section 3813 Notice of Claim that must be filed with a school district

Posted on December 09, 2010
Timely appeal to the Commissioner of Education provides the pre-litigation Section 3813 Notice of Claim that must be filed with a school districtMennella v Uniondale UFSD, Supreme Court, 287 AD2d 636, Motion for leave to appeal denied, 98 NY2d 602As a general rule, Section 3813 of the Education Law requires that in order to sue a school district the plaintiff must file a timely notice of claim if he or she plans or expects to sue the district...

Medical experts and conflicting medical opinions

Posted on December 09, 2010
Medical experts and conflicting medical opinionsHarper v McCall, App. Div., Third Dept., 277 AD2d 589Pauline Harper challenged the rejection of her applications for ordinary and accidental disability retirement benefits by the New York State Employees? Retirement System, contending that the Comptroller should have considered the expert medical opinion of her physician in making his determination...

Complimentary Webinar - Assessing the Risks of Moving to "The Cloud"

Posted on December 08, 2010
Complimentary Webinar - Assessing the Risks of Moving to "The Cloud"Source: Virtual LegalTechA one-hour webinar entitled, "Addressing and Assessing the Risks of Moving to the Cloud," will offered by Virtual LegalTech on December 14, 2010 from 1:30 ? 2:30 PM ET...

Disciplinary charges must sufficiently specific so as to permit the accused to prepare his or her defense

Posted on December 08, 2010
Disciplinary charges must sufficiently specific so as to permit the accused to prepare his or her defenseWolfe v Kelly, 2010 NY Slip Op 08847, decided on December 2, 2010, Appellate Division, First DepartmentEric Wolfe, a New York City Police Department detective, was served with disciplinary charges alleging that He was guilty of perjury and the confiscation of drugs and money for personal gain involving Wolfe?s ?stopping unidentified individuals in unspecified locations and confiscating unspecified amounts of narcotics and cash for his own personal gain on four occasions that occurred on unspecified dates at some time during a 24-month period between January 1998 and December 1999...

Placement on a preferred list

Posted on December 08, 2010
Placement on a preferred listBratge v Stockbridge Valley CSD, Decision of the Commissioner of Education #14454The Bratge case demonstrates the importance of complying with all statutory and contractual procedures relevant to personnel actions.The Stockbridge Valley Central School District appointed Katrina Bratge as an Assistant Building Principal/Guidance Counselor [K-12]...

Rejection of an applicant for appointment as a police officer based on ?psychological unsuitability?

Posted on December 08, 2010
Rejection of an applicant for appointment as a police officer based on ?psychological unsuitability?Massaro v Mercado, 276 AD2d 445After being rejected for appointment as a police officer, Louis Massaro filed a complaint with the Division of Human Rights...

Determining if assigned duties constitute out-of-title work

Posted on December 08, 2010
Determining if assigned duties constitute out-of-title workCSEA v Angello, App. Div., Third Dept.,CSEA, representing 128 employees of the Central New York Developmental Disabilities Service Organization serving as Developmental Aide - In Residence [DA-IR9] filed a grievance claiming that such employees were routinely assigned supervisory duties of a SG-12 Developmental Assistant I - In Residence [DAI-IR12] and that such tasks constituted out-of-title work under the relevant Taylor Law contract...

Administrative Law Judge examination scheduled

Posted on December 07, 2010
Administrative Law Judge examination scheduledSource: New York State Department of Civil ServiceThe New York State Department of Civil Service will hold an examination for Administrative Law Judge, NYS Workers Compensation Board, on February 5, 2011. This is an ?SG-28 position, with a starting salary of $86,168...

Fruits of an undercover investigation used as a basis for disciplinary charges

Posted on December 07, 2010
Fruits of an undercover investigation used as a basis for disciplinary chargesDiGiovanni v Safir277 AD2d 36May the appointing authority bring disciplinary action against an employee based on information obtained from undercover police officers. As the DiGiovanni decision indicates, such information can serve as a basis for filing disciplinary charges against an individual...

Modifying employee work schedules

Posted on December 07, 2010
Modifying employee work schedulesMaineri v Syosset CSD, 276 AD2d 793Contract grievances involving changing an individual?s work schedule generally are resolved by interpreting the language set out in the collective bargaining agreement. Of equal importance in such situations is whether the contract is silent or sets out exclusions with respect to such changes as the Maineri case demonstrates...

Social Media - its use by employers in pre-employment, employment and post-employment situations

Posted on November 26, 2010
Social Media - its use by employers in pre-employment, employment and post-employment situationsSource: Article by Eileen Morgan Johnson, Esq. of Whiteford, Taylor Preston [emjohnson@wtplaw.com ]. Copyright 2010 Eileen Morgan Johnson, All rights reserved...

Postings will resume Monday, November

Posted on November 26, 2010
Postings will resume Monday, November 29, 2010. .

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