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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

Temporary appointment to a position in the public service

Posted on July 28, 2010
Temporary appointment to a position in the public serviceCSEA Local 1000 v NYS Dept. of Civil Service, App Div, 250 A.D.2d 968, Motion to appeal denied, 92 N.Y.2d 808The State Fair Division of the New York State Department of Agriculture and Markets employed a number of individuals in noncompetitive class or labor class positions and designated them as ?temporary employees...

Employee may be disciplined for refusing to cooperate in a non-disciplinary investigation interview by superior

Posted on July 27, 2010
Employee may be disciplined for refusing to cooperate in a non-disciplinary investigation interview by superiorNYC Health and Hospital Corporation v Jones, OATH Index #1100/10Karin Jones, a clerical employee at a City hospital, was charged with misconduct arising from an incident involving a mother strike or push her young child during a visit to the hospital...

Advisory arbitration recommendation neither binding on the parties nor subject to "confirmation" pursuant to CPLR Article 75

Posted on July 27, 2010
Advisory arbitration recommendation neither binding on the parties nor subject to "confirmation" pursuant to CPLR Article 75CSEA Local 1000 v Nassau County, Appellate Division, 251 A.D.2d 328The CSEA and Nassau County submitted a grievance to advisory arbitration...

Buying back retirement credit

Posted on July 27, 2010
Buying back retirement creditWhalen v Whalen, Rockland County Supreme Court, [Not published in the Official Reports]Buying back or purchasing retirement system service credit when possible is usually viewed as a good decision on the part of system member as it will generally increase the member?s ultimate retirement allowance...

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The controlling statute of limitations for filing an Article 78 petition challenging an administrative decision may be set out in another law

Posted on July 26, 2010
The controlling statute of limitations for filing an Article 78 petition challenging an administrative decision may be set out in another lawHayes v City of NY Dept. of Citywide Admin. Servs., 2010 NY Slip Op 20289, Decided on July 20, 2010, Supreme Court, New York County, Judge Alexander W...

The disclosure of mediation discussions in violation of a confidentiality agreement may subject a party to sanctions

Posted on July 26, 2010
The disclosure of mediation discussions in violation of a confidentiality agreement may subject a party to sanctionsSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright � 2010, Mitchell H. Rubinstein, Esq...

Individual terminated based on a defective disciplinary decision by the appointing authority entitled to reinstatement with back pay

Posted on July 26, 2010
Individual terminated based on a defective disciplinary decision by the appointing authority entitled to reinstatement with back payErnst v Saratoga County, Appellate Division, 251 A.D.2d 866Saratoga County filed disciplinary charges against Donald P...

Commissioner of Education no longer has jurisdiction to determine the merits of disciplinary charges served on a tenured teacher

Posted on July 26, 2010
Commissioner of Education no longer has jurisdiction to determine the merits of disciplinary charges served on a tenured teacherAppeal of Nicola A. DeMarco from action of the New York City Department of Education regarding disciplinary charges, Decisions of the Commissioner of Education, No...

Applying the Rule of Three when there are tied scores involved

Posted on July 23, 2010
Applying the Rule of Three when there are tied scores involvedSource: A Google Alert received by NYPPLA "Goggle Alert" received by NYPPL via the Internet concerned applying the Rule of Three set out in �61.1 of the Civil Service Law based on the following facts:?I scored a 100 on a New York State civil service promotional exam...

Vacating an arbitration award based on allegations that the arbitrator was not impartial

Posted on July 23, 2010
Vacating an arbitration award based on allegations that the arbitrator was not impartialMeehan v Nassau Community College, App. Div., 251 A.D.2d 417, Motion for leave to appeal dismissed, 92 N.Y.2d 946This item summarizes a number of related decisions involving the same parties considered by the Appellate Division...

Multiple Section 75 thirty-day suspensions without pay are permitted if additional disciplinary charges are subsequently filed against the employee

Posted on July 23, 2010
Multiple Section 75 thirty-day suspensions without pay are permitted if additional disciplinary charges are subsequently filed against the employeeFigueroa v NYS Thruway Authority, App. Div., 251 A.D.2d 773The New York State Thruway Authority filed a series of four charges against Gladys Figueroa, its Affirmative Action Administrator...

Assigning a disabled police officer to a ?desk job? held to be a reasonable accommodation

Posted on July 23, 2010
Assigning a disabled police officer to a ?desk job? held to be a reasonable accommodationKeever v Middletown, 145 F.3d 809According to the U.S. Circuit Court of Appeals, Sixth Circuit, providing a ?desk job? as a reasonable accommodation to a disabled police officer satisfied Americans with Disabilities Act [ADA] accommodation requirements despite the fact that the officer preferred a different assignment...

State Comptroller?s report of the use of contacts for personal and other services by the NYS Department of Taxation and Finance

Posted on July 23, 2010
State Comptroller?s report of the use of contacts for personal and other services by the NYS Department of Taxation and FinanceSource: Office of the New York State Comptroller Thomas P. DiNapoliDuring the three-year audit period, the Department of Taxation and Finance had 81 contracts for personal and miscellaneous services totaling about $563 million...

US Department of Labor to conduct Family Medical Leave Act study

Posted on July 23, 2010
US Department of Labor to conduct Family Medical Leave Act studySource: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/Copyright � 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation...

Disciplinary actions in absentia

Posted on July 22, 2010
Disciplinary actions in absentiaClarke v NYC Board of Education, App. Div., 251 A.D.2d 403No one gave Fernando A. Clarke, a purchasing agent employed by the New York City Board of Education, permission to be absent from his job on February 14, 1994. To make matters worse, he never returned to work and didn?t bother to appear for a scheduled disciplinary hearing...

Participating in an arbitrationElmira

Posted on July 22, 2010
Participating in an arbitrationElmira Heights CSD v Ed. Support Staff Asso., App Div 250 A.D.2d 983, Motion for leave to appeal denied, 92 N.Y.2d 807What should a party to an arbitration do if it believes that the controversy to be submitted to the arbitrator is not arbitrable? As the Elmira Heights decision points out, such an objection must be raised by applying for a stay of arbitration or it is waived...

Polygraph testsOst v Town of Woodstock,

Posted on July 22, 2010
Polygraph testsOst v Town of Woodstock, Appellate Division, 251 A.D.2d 724, Motion for leave to appeal denied, 92 N.Y.2d 817One of the issues raised in the Ost case was the admission of testimony concerning a polygraph [lie-detector] test during a Section 75 disciplinary hearing...

Selected court decisions concerning employment issues noted by law firms

Posted on July 22, 2010
Selected court decisions concerning employment issues noted by law firms Source: The Lexology newsfeed [New users can register free of charge at www.lexology.com/account/register.aspx]The distinction between policy and procedureFrom Fox Rothschild LLP by Jeffrey T...

Writ of mandamus unavailable to an individual seeking the removal of material from his or her personnel file where discretionary action involved

Posted on July 21, 2010
Writ of mandamus unavailable to an individual seeking the removal of material from his or her personnel file where discretionary action involvedHazen v Board of Educ. of City School Dist. of City of New York, 2010 NY Slip Op 06142, Decided on July 20, 2010, Appellate Division, First DepartmentIs a letter to an individual concerning his or her work performance constructive criticism or pejorative reprimand? The courts have held that characterizing the letter as a "reprimand" constitutes discipline, entitling the individual to a Section 3020-a hearing or a contract disciplinary procedure...

Divorced retiree may enroll his or her new spouse for dependent coverage in the retiree?s health insurance plan as provided by the CBA

Posted on July 21, 2010
Divorced retiree may enroll his or her new spouse for dependent coverage in the retiree?s health insurance plan as provided by the CBAGiblin v Village of Johnson City, 2010 NY Slip Op 06133, Decided on July 15, 2010, Appellate Division, Third DepartmentWhen William Giblin retired from his position with the Village of Johnson City, he continued his individual and dependent health insurance for himself and his then-wife pursuant to the terms of the relevant collective bargaining agreement [CBA]...

A government official performing

Posted on July 21, 2010
A government official performing a discretionary function is entitled to qualified immunity unless violative of an individual's statutory or constitutional rightsCavanaugh v Doherty, Appellate Division, 243 A.D.2d 92Erin Cavanaugh, an Assistant Public Relations Aide employed by the State Department of Correctional Services and Thomas Doherty, Appointment Secretary in the Executive Department, became involved in a political argument at a restaurant...

The doctrine of collateral estoppel bars relitigating a complaint based on the same issues as earlier litigated

Posted on July 21, 2010
The doctrine of collateral estoppel bars relitigating a complaint based on the same issues as earlier litigatedParker v Blauvelt Volunteer Fire Company, App. Div., 251 A.D.2d 389 [Affirmed on basis of collateral estoppel, 93 N.Y.2d 343]It is a basic principle of law that an individual may not relitigate a claim that he or she had early presented to, and had been considered and decided by, the courts...

Governor Paterson revokes his proclamations calling for extraordinary legislative sessions

Posted on July 21, 2010
Governor Paterson revokes his proclamations calling for extraordinary legislative sessionsSource: New York State Office of the GovernorOn July 21, 2010, Governor David A. Paterson revoked his proclamations for the extraordinary sessions he issued on January 17, 2010 and June 26, 2010...

Having obtain the relief sought on the basis of one of several arguments further appeal is precluded as the individual is no longer an aggrieved party

Posted on July 20, 2010
Having obtain the relief sought on the basis of one of several arguments further appeal is precluded as the individual is no longer an aggrieved partyHoover v DiNapoli, 2010 NY Slip Op 06127, Decided on July 15, 2010, Appellate Division, Third DepartmentDavid A...

Appeals to the Commissioner must be filed within 30 days of the act or omission for which redress is sought absent the Commissioner excusing the delay

Posted on July 20, 2010
Appeals to the Commissioner must be filed within 30 days of the act or omission for which redress is sought absent the Commissioner excusing the delayAppeal of Michael P. Thomas seeking the removal of High School Superintendent Francesca Pena, Decisions of the Commissioner of Education, Decision No...

Running for elected office could adversely affect individual?s continuation in his or her public employment

Posted on July 20, 2010
Running for elected office could adversely affect individual?s continuation in his or her public employmentCusumano v Board of Commissioners, App. Div., 251 A.D.2d 404,The Cusumano case shows that the decision of a public employee to run for public office may have an unexpected, and unintended, impact on his or her public employment...

Educator's ignoring repeated warnings not to engage in physical contact with students held justified termination

Posted on July 20, 2010
Educator's ignoring repeated warnings not to engage in physical contact with students held justified terminationForte v Mills, Appellate Division, 250 A.D.2d 882According to his supervisors at the Manhasset Union Free School District, physical educator teachers Garry Forte had a habit of poking female students in the back and occasionally ?snapped their bra straps? during physical education class...

Commission?s authority to determine applicant?s qualification for appointment not compromised by court?s order directing the production of evidence

Posted on July 20, 2010
Commission?s authority to determine applicant?s qualification for appointment not compromised by court?s order directing the production of evidenceMatter of McElligott v Nassau County Civ. Serv. Commn., 57 AD3d 671The Nassau County Civil Service Commission disqualified Maurice McElligott for appointment as a police officer after finding that he did not meet the psychological requirements of the position...

Unilaterally deducting employee leave accruals and creating a noncontractual procedure for recouping holiday pay violated employer's duty to negotiate

Posted on July 20, 2010
Unilaterally deducting employee leave accruals and creating a noncontractual procedure for recouping holiday pay violated employer's duty to negotiateSullivan County Patrolman's Benevolent Association, Inc. and County of Sullivan and Sullivan County Sheriff, U-26725 [Source: PERB?s Recent Decisions posting on the Internet]The Board affirmed the decision of the ALJ finding that the County violated the Taylor Law by unilaterally implementing a system for the recovery of leave accruals and holiday pay which a unit employee allegedly owed to the County and by deducting vacation, sick leave and personal leave from the employee's leave accrual...

Public law takes precedence over private law

Posted on July 19, 2010
Public law takes precedence over private law*Source: Administrative Law Professor Blog. Reproduced with permission. Copyright � 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/ -- From Law.com, "9th Circuit: No Choice of Law on Independent Contractor Status" by Cheryl Miller of The RecorderIn a significant victory for employment plaintiffs, the 9th U...

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