New York Public Personnel Law: Labor & Employment Law

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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

The arbitrator should determine if the issue raised in a demand for arbitration is subject to arbitration under the terms of the bargaining agreement

Posted on March 01, 2010
The arbitrator should determine if the issue raised in a demand for arbitration is subject to arbitration under the terms of the bargaining agreementMatter of Town of Cheektowaga v Cheektowaga Police Club, Inc., 59 AD3d 993The Cheektowaga Police Club, representing police officers below the rank of lieutenant, filed a demand for arbitration to challenge Cheektowaga?s decision to promote one officer to the rank of lieutenant instead of another officer, based on the other officer's residence outside the Town of Cheektowaga...

A policy decision by the employer is not subject to "pre-negotiations;" the impact of that decision on unit members is negotiable

Posted on March 01, 2010
A policy decision by the employer is not subject to "pre-negotiations;" the impact of that decision on unit members is negotiableMatter of County of Erie & Erie County Sheriff v State of New York Pub. Empl. Relations Bd. Et al., 12 NY3d 72Civil Service Employees Association, Inc...

Employee?s personnel records considered by the administrative law judge in determining the disciplinary penalty to be recommended

Posted on March 01, 2010
Employee?s personnel records considered by the administrative law judge in determining the disciplinary penalty to be recommendedHealth and Hospital Corp. v Milton Meyers, OATH Index No. 1487/09Administrative Law Judge Alessandra F. Zorgniotti found that a hospital aide guilty of intentionally ?chest bumping? a co-worker with such force as to cause the co-worker to stumble...

PERB Administrative Law Judges consider the negotiability of demands to establish procedures concerning GML Section 207-c benefits

Posted on March 01, 2010
PERB Administrative Law Judges consider the negotiability of demands to establish procedures concerning GML Section 207-c benefitsCity Of Middletown and City of Middletown Police Benevolent Association, Improper Practice Petition U-27423 [by ALJ Fitzgerald]Port Washington Police District and Port Washington Police Benevolent Association, Inc...

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Exhaustion of administrative remedies

Posted on February 26, 2010
Exhaustion of administrative remediesMatter of Castillo v Town of Oyster Bay, 2010 NY Slip Op 01483, Decided on February 16, 2010, Appellate Division, Second DepartmentChristopher Castillo was charged with misconduct by his employer, the Town of Oyster Bay Department of Public Works...

Unilateral creation of a new shift for certain employees in the bargaining unit

Posted on February 26, 2010
Unilateral creation of a new shift for certain employees in the bargaining unitUnited Public Service Employees Union And County Of Columbia, Decisions of the Board, PERB U-26761The Board affirmed a decision of an ALJ rejecting an employer's duty satisfaction and waiver defenses to a charge alleging a violation of �209-a...

The absence of language in the

Posted on February 26, 2010
The absence of language in the collective bargaining agreement providing for the claimed benefit bars the arbitration of the alleged grievanceMatter of Union-Endicott Cent. School Dist. v Endicott Teachers' Assn., 59 AD3d 799Joanne Peters, a teacher employed by the Union-Endicott Central School District was a member of the collective bargaining unit represented by the Endicott Teachers Association...

Termination recommended for two

Posted on February 26, 2010
Termination recommended for two correction officers found guilty of using excessive force on an inmateDept. of Corrections v Rodney Williams and Alexander Williams,* OATH Index Nos. 2215/08 and 2216/08Administrative Law Judge John B. Spooner found two correction officers searched an inmate's cell without authorization and that one of the officers used impermissible force against the inmate...

Elements essential to a grand jury making a finding concerning a public official?s performance of his or her duties

Posted on February 26, 2010
Elements essential to a grand jury making a finding concerning a public official?s performance of his or her dutiesMatter of Second Report of Seneca County Special Grand Jury of Jan. 2007. 59 AD3d 1079It is a rather rare occurrence for a grand jury to be asked to consider alleged misconduct by of public officer...

Only service of the petition and related papers an individual authorized by the agency head to accept service constitutes proper service

Posted on February 26, 2010
Only service of the petition and related papers an individual authorized by the agency head to accept service constitutes proper serviceMatter of Lowney v New York State Division of Human Rights, 2009 NY Slip Op 30270(U), February 4, 2009, Supreme Court, New York County, Docket Number: 108754/07, Judge: Walter B...

The ?Firefighters Rule? bars police official from suing his or her employer for injuries he or she suffered as a result of negligence in operating sec

Posted on February 25, 2010
The ?Firefighters Rule? bars police official from suing his or her employer for injuries he or she suffered as a result of negligence in operating security devicesWadler v City of New York, 2010 NY Slip Op 01373, Decided on February 18, 2010, Court of AppealsThe parking lot of the New York City Police Headquarters in Manhattan is protected by a concrete barrier-gate that can be retracted into the ground to allow entry to the lot...

Arbitration panel may retain jurisdiction of a matter it adjudicated indefinitely

Posted on February 25, 2010
Arbitration panel may retain jurisdiction of a matter it adjudicated indefinitelyMatter of Brisman v Hebrew Academy of Five Towns & Rockaway, 2010 NY Slip Op 01480, Decided on February 16, 2010, Appellate Division, Second DepartmentNachum Brisman was terminated from his ?tenured teaching position? at the Hebrew Academy...

Failure to agree to a union?s demand,

Posted on February 25, 2010
Failure to agree to a union?s demand, without more, does not constitute bad faithHewlett Woodmere Administrative and Supervisory Association And Hewlett-Woodmere Union Free School District, PERB U-27459PERB Administrative Law Judge Cacavas ruled that a charge filed more than four months after the Association knew or should have known that an impact bargaining violation had occurred is untimely and must be dismissed...

Slip and fall due to the employee?s

Posted on February 25, 2010
Slip and fall due to the employee?s wet shoes held an accident for the purposes of qualifying for accidental disability retirement benefitsMatter of Leary v New York City Employees' Retirement Sys., 59 AD3d 547More often than not an application for accidental disability retirement benefits is rejected on the grounds that the event leading to the injury resulting in the filing of the application for such a benefit did not constitute an ?accident? within the meaning of the controlling statute...

Probationer must prove dismissal was made in bad faith or for a statutorily or constitutionally impermissible reason

Posted on February 25, 2010
Probationer must prove dismissal was made in bad faith or for a statutorily or constitutionally impermissible reasonMatter of Bonanno v Nassau County Civ. Serv. Commn., 59 AD3d 541Dorothy H. Bonanno, a probationary employee dismissed from her position, sued to regain her position alleging that her termination was arbitrary nor capricious...

Another aspect of the emerging "Law of the E-mail"

Posted on February 25, 2010
Another aspect of the emerging "Law of the E-mail"Williamson v Delsener, 59 AD3d 291In this case the Appellate Division considered the impact of an exchange of e-mails between attorneys representing the parties with respect to the settlement of the then pending litigation...

Changing the job description of a position to include new or additional duties must satisfy a ?rational basis? test to survive judicial scrutiny

Posted on February 25, 2010
Changing the job description of a position to include new or additional duties must satisfy a ?rational basis? test to survive judicial scrutinyMatter of Criscolo v Vagianelis, 12 NY3d 92The NYS Department of Correctional Services provides for three levels of administrative hearings to consider ?inmate misbehavior reports...

The Court of Appeal decides if the State Legislature has met its Constitution obligation to determine if judicial salaries should be adjusted

Posted on February 24, 2010
The Court of Appeal decides if the State Legislature has met its Constitution obligation to determine if judicial salaries should be adjustedMatter of Maron v Silver, 2010 NY Slip Op 01528, Decided on February 23, 2010, Court of Appeals*The Court of Appeals has ruled on the lawsuit initiated by a number of judges challenging the State Legislature?s failure to increase the salaries of the State?s Judiciary since 1998...

Appeal challenging increasing the school superintendent?s compensation dismissed ?for failure to name a necessary party? ? the Superintendent

Posted on February 24, 2010
Appeal challenging increasing the school superintendent?s compensation dismissed ?for failure to name a necessary party? ? the SuperintendentAppeal of George R. Hubbard v Board of Education of the Greece Central School District, Decisions of the Commissioner, Decision No...

Employee organization may elect not to act provided its decision is not improperly motivated

Posted on February 24, 2010
Employee organization may elect not to act provided its decision is not improperly motivatedDaniel Farrey And District Council 37, AFSCME, AFL-CIO, Decisions of the Board, PERB U-27677The Public Employment Relations Board affirmed the decision of an ALJ dismissing a duty of fair representation charge filed by Daniel Farrey (Farrey) against District Council 37 (DC 37) with respect to negotiated provisions of an agreement relating to the federal Fair Labor Standards Act (FLSA)...

Removal and appointment of an individual

Posted on February 24, 2010
Removal and appointment of an individual to the position of Election Commissioner by a county legislatureMatter of Wood v County of Cortland, 23 Misc 3d 913The general rule is that the power to appoint implies the power to remove. The Wood case demonstrates an exception to this rule: The power to appoint does not support a claim of the power to remove an incumbent when removal from the position in question is provided for by statute...

A ?general release? of liability for an injury is not sufficient to insulate a governmental agency from liability resulting from its own negligence

Posted on February 24, 2010
A ?general release? of liability for an injury is not sufficient to insulate a governmental agency from liability resulting from its own negligenceRigney v Ichabod Crane Cent. School Dist., 59 AD3d 842It is quite common for a State or municipal entity to require that individuals using its facilities sign a waiver releasing it from liability in the event the individual suffers an injury while on the premises or while participating in an activity at the facility...

After recommending termination, hearing officer suggests that under the circumstances, the appointing authority could impose a lesser penalty

Posted on February 24, 2010
After recommending termination, hearing officer suggests that under the circumstances, the appointing authority could impose a lesser penaltyDepartment of Sanitation v Vincent Brooks and Michael Newsome, OATH Index Nos. 559/09 & 560/09OATH Administrative Law Judge Faye Lewis found two sanitation workers violated the department's trade waste order when they collected construction debris from a house, without obtaining prior permission from a supervisor...

Eligibility for Workers? Compensation benefits depends on whether a work related injury was the reason why an individual retired

Posted on February 24, 2010
Eligibility for Workers? Compensation benefits depends on whether a work related injury was the reason why an individual retiredMatter of Hayes v Nassau County Police Dept., 59 AD3d 831Following his involvement in two work-related car accidents, Ronald J...

Use of polygraph evidence in a disciplinary hearing

Posted on February 23, 2010
Use of polygraph evidence in a disciplinary hearingOst v Town of Woodstock, 251 A.D.2d 724One of the issues raised in Ost was the admission of testimony concerning a polygraph [lie-detector] test in the course of a Section 75 disciplinary hearing.Shawn Ost, a Town of Woodstock police officer, was terminated from his position for allegedly using his police vehicle to "give a young civilian woman a ride to her home outside the geographical boundaries of the Town, without authorization and subjected her to unwanted sexual contact...

Ability to pass hearing test without the assistance of a hearing aid found a business necessity for the purpose of qualifying for a security position

Posted on February 23, 2010
Ability to pass hearing test without the assistance of a hearing aid found a business necessity for the purpose of qualifying for a security positionAllmond v. Akal Security Inc., No. 07-15561, USCA 11th CircuitWilbur Allmond sued Akal Security Inc. after it terminated him from his position as a security guard after he failed to pass the required hearing examination...

Twenty-day statute of limitations for filing an appeal with the Unemployment Insurance Board strictly construed

Posted on February 23, 2010
Twenty-day statute of limitations for filing an appeal with the Unemployment Insurance Board strictly construedMatter of Pascarella v New York State Thruway Auth., 59 AD3d 835An agency Administrative Law Judge [ALJ] reversed an initial determination that denied former New York State Thruway employee James J...

Employee must show a causal relationship between injury and employment to be eligible for workers? compensation benefits

Posted on February 23, 2010
Employee must show a causal relationship between injury and employment to be eligible for workers? compensation benefitsMatter of Norton v North Syracuse Cent. School Dist., 59 AD3d 890North Syracuse CSD school bus attendant Diane Norton sustained a compensable injury and awarded her workers' compensation benefits...

Arbitrator finds employee guilty of disciplinary charges filed against him; offers employer a choice of penalties to be imposed

Posted on February 23, 2010
Arbitrator finds employee guilty of disciplinary charges filed against him; offers employer a choice of penalties to be imposedMatter of Hansen v New York State Dept. of Correctional Servs., 59 AD3d 903NYS Correction Officer Ronald Hansen was served with two notices of discipline...

Automatic removal of a public officer

Posted on February 22, 2010
Automatic removal of a public officer upon conviction of a crimePublic Officers Law Section 30.1(e)In some instances it is not necessary for the appointing authority to hold a disciplinary hearing in order to terminate an individual. Section 30.1(e) of the Public Officers Law, in pertinent part, provides that a public officer shall be removed from office upon ?? his [or her] conviction of a felony, or a crime involving a violation of his [or her] oath of office?...

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