Labor & Employment Law

The Northwestern University Law Review has published an article written by Mitchell H. Rubinstein, Esq. Readers of New York Public Personnel Law will be familiar with Professor Rubinstein?s work, which is frequently republished in this LawBlog.

Professor Rubinstein?s most recent contribution addresses an important, but rarely considered issue: What are the constitutional protections are available to individuals submitting their resignation to an employer?

Professor Rubinstein?s law review article, A Lawyers Worst Nightmare: The Story Of A Lawyer And His Nurse Clients Who Were Both Criminally Charged Because The Nurses Resigned En Mass, [103 Northwestern U. L. Rev. Colloquy 317 (Jan. 19, 2009)] may be downloaded from his SSRN page, available here without charge.

The following is an abstract of the article:

?Imagine that a group of foreign registered nurses approach their lawyer because they feel abused and want to quit their jobs. They signed an employment contract agreeing to remain employed for three years and are unsure of their rights. The contract that they signed also contains a $25,000 liquidated damage provision. The lawyer advised his clients that they have to right to quit, and after they quit, the lawyer and his clients find themselves at the center of a massive criminal and civil controversy. Both the lawyer and his clients are criminally charged with endangering the welfare of critically ill pediatric patients and related crimes because the nurses resigned en masse without notice. You might think that such a case could not arise in Twenty-First Century America, but in 2007 that is exactly what occurred in Suffolk County New York and resulted in a New York appellate court having to prohibit the criminal prosecution of both the nurses and their attorney. Matter of Vinluan v. Doyle, ___A.D.3d___, 2009 WL 93065 (2d. Dep't. Jan. 13, 2009).

?This Essay examines this troubling case, where the court held that such a prosecution offended the Thirteenth Amendment and the attorneys First Amendment right to provide legal advice to his clients. This Essay explores the public policy issues raised by this case, whether nurses have the same right to withhold their labor as other employees, as well as certain issues which the court did not reach such as whether criminal prosecution of the nurses is preempted by the National Labor Relations Act. Additionally, this Essay explores legal issues surrounding the criminal prosecution of an attorney based on advice he may have given which the court ultimately found to be "profoundly disturbing." The Essay concludes by explaining that the liquidated damage provision, which may have sparked this entire controversy, was probably unenforceable as a penalty, another issue not reached by the court, that criminal prosecution of both the nurses and their attorney was unwarranted and that the Appellate Division decision was correctly decided.?

The full text of the Vinluan is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_00219.htm

It is expected that this important decision will be discussed in law schools and in law school case books nationwide.

As to the potential impact of the Vinluan decision on employees of New York State and its political subdivisions, two factors with respect to resignation from public employment, notice of, and processing of, are controlled by law, rule or regulation constitute critical elements to the lawful processing of such a separation.

Notice: With respect to notice, in the employee's failure to give the appointing authority notice of the effective date of a resignation is not a fatal defect

Such failure, however, may have other consequences.

For example, both 4 NYCRR 23.1 and 4 NYCRR 30.1 provide, in pertinent part, that the appointing authority may require that the employee give at least two weeks prior to the last day of work as a condition of the payment of the individual's accrued vacation credits. Local civil service commissions have adopted similar rules or regulations.

Similarly, Education Law Section 3019-a requires that a teacher ?who desires to terminate his services? give the appointing authority at least 30 days notice. The teacher?s failure to provide such notice may, however, have more significant consequences. Education Law §3019 provides that ?Any failure on the part of a teacher to complete an agreement to teach a term of school without good reason therefor shall be deemed sufficient ground for the revocation of the teacher's certificate.?

Resignation: Concerning the event triggering the effectiveness of a resignation, although both public employers and employees frequently consider "acceptance" as the operative element in effecting a resignation, the concept is troublesome.

Aside from Thirteenth Amendment considerations discussed in Vinluan, if the appointing authority delays its consideration of, or "refuses to accept," the resignation, does the employee expose himself or herself to disciplinary action if he or she fails to continue to report to work as scheduled? In other words, may the appointing authority refuse to accept a resignation submitted by a public officer or employee?

Section 31 of New York?s Public Officers Law addresses resignations by public officers as follows: written resignations take effect upon delivery to the appropriate authority. If an effective date is specified, the resignation takes effect on that date or 30 days after delivery, whichever event first occurs. Once delivered, the resignation may not be withdrawn or rescinded without the consent of the officer or body to whom it was delivered. Clearly acceptance of the resignation is not an "operative" with respect to its effectiveness.

The "delivery or filing" of a written resignation with the appointing authority [or the representative of the appointing authority] is also the operative element in rules adopted by the New York State Civil Service Commission addressing the processing of written resignations submitted by employees in the classified service of the State [see 4 NYCRR 5.3(b)].

Additionally, in contrast to using a phrase such as "refuse to accept," the rule provides that an appointing authority may elect to "disregard" the employee's resignation and pursue disciplinary action against the individual notwithstanding the delivery of the resignation. This signifies that the resignation is operative upon delivery but that the individual may still be subject to disciplinary action.

Indeed, if the disciplinary action goes forward and the individual is found guilty and the penalty of ?termination? is imposed, 4 NYCRR 5.3(b) provides that the ?termination shall be recorded as a dismissal rather than as a resignation.? Further, both 4 NYCRR 23.1 and 4 NYCRR 30.1 provide, in pertinent part, that ?No employee who is removed from State service as a result of disciplinary action or who resigns after charges of incompetency or misconduct have been served upon him shall be entitled to compensation for vacation credits?.?

Accordingly, it would seem appropriate for an appointing authority to merely "acknowledge" rather than "accept" or "approve" a resignation except where acceptance or approval of the resignation by some entity is authorized or required by law.

For example, Section 2111 of the Education Law provides that an officer of a school district may "resign at a district meeting" or, in the alternative, the officer "shall also be deemed to have resigned if he filed a written resignation with the district superintendent of his district and such superintendent endorses thereon his approval and files the same with the district clerk."

Full post as published by New York Public Personnel Law on January 21, 2009 (boomark / email).