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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

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 December 10, 2009
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

Duty to negotiate and waiver defenses to charges of violation of §209-a.1(d) subject to ?standard principles of contract interpretation?

Posted on December 10, 2009
Duty to negotiate and waiver defenses to charges of violation of §209-a.1(d) subject to ?standard principles of contract interpretation?United 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 satisfaction of its duty to negotiate and waiver defenses to a charge alleging a violation of §209-a

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

Posted on December 09, 2009
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 December 09, 2009
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...

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Arbitrator's offering the appointing authority a choice of two definite penalties does not render the final award indefinite

Posted on December 09, 2009
Arbitrator's offering the appointing authority a choice of two definite penalties does not render the final award indefiniteMatter of Hansen v New York State Dept. of Correctional Servs., 59 AD3d 903May an arbitrator provide the appointing authority with alternative disciplinary penalties, one of which to be imposed on an individual found guility of disciplinary charges? This was the issue in the

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 December 09, 2009
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., 304 Fed. Appx. 795 [Affirmed Court of Appeals, 11th Circuit, February 20, 2009]Wilbur Allmond sued Akal Security Inc...

Failure to agree to a union?s demand, without more, does not constitute bad faith

Posted on December 09, 2009
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, 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

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

Posted on December 09, 2009
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...

Administrative agency required to comply with its own administrative rules of procedure

Posted on December 08, 2009
Administrative agency required to comply with its own administrative rules of procedureMatter of Blaize v Klein, 2009 NY Slip Op 09021, Decided on December 1, 2009, Appellate Division, Second DepartmentBeverly Lynch, in her capacity as Rating Officer and Principal of Community School District 22, P...

The custodian of the records has the burden of proving that information it withheld in responding to a FOIL request is within a FOIL exemption

Posted on December 08, 2009
The custodian of the records has the burden of proving that information it withheld in responding to a FOIL request is within a FOIL exemptionMatter of U.S. Claims Servs. Inc. v New York State Dept. of Audit & Control, 23 Misc 3d 923The U.S. Claims Services case concerned a FOIL demand for certain information held by the State Comptroller concerning the value of fund held by the State pursuant to

The ?notice of claim? required Education Law § 3813[1] must be more than an e-mail or an unverified [not sworn to] statement

Posted on December 08, 2009
The ?notice of claim? required Education Law § 3813[1] must be more than an e-mail or an unverified [not sworn to] statementGastman v Department of Educ. of City of New York, 60 AD3d 444According to the decision, Gastman had failed to file a timely notice of claim with the New York City Department of Education as required by Education Law §3813[1]...

Sending an e-mail concerning an interpretation of a contract provision ruled a protected activity within the meaning of the Taylor Law

Posted on December 08, 2009
Sending an e-mail concerning an interpretation of a contract provision ruled a protected activity within the meaning of the Taylor LawNew York State Correctional Officers and Police Benevolent Association, Inc. and State Of New York (Division Of Parole) PERB Decision U-26734The Public Employment Relations Board affirmed, in part, and reversed, in part, a decision of an Administrative Law Judge

Using polygraph tests in administrative disciplinary proceedings

Posted on December 08, 2009
Using polygraph tests in administrative disciplinary proceedingsOst v Town of Woodstock, 251 A.D.2d 724In Ost v Town of Woodstock, one of the issues raised was the admission of testimony concerning a polygraph [lie-detector] test during a Section 75 disciplinary hearing...

Evaluation of the duties required of an employee applying for disability benefits must be based on the actual duties performed or to be performed

Posted on December 07, 2009
Evaluation of the duties required of an employee applying for disability benefits must be based on the actual duties performed or to be performed Matter of Wilson v New York State & Local Retirement Sys., 2009 NY Slip Op 08938, decided on December 3, 2009, Appellate Division, Third DepartmentGary L...

Employee not required to take FMLA

Posted on December 07, 2009
Employee not required to take FMLA leave to establish FMLA retaliation claim, Third Circuit findsSource: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/ Copyright © 2009. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission...

Supervisor?s comments concerning an employee?s job performance protected by a qualified privilege absent a showing of malice

Posted on December 07, 2009
Supervisor?s comments concerning an employee?s job performance protected by a qualified privilege absent a showing of maliceBayer v City of New York, 60 AD3d 713Hank Bayer, who was employed as a plumber by the New York City Department of Education, sued the City, the Department of Education and his supervisor, Nunzio Piro, alleging, that Piro defamed him and repeatedly accused him of misconduct

An individual may not withdraw or rescind his or her resignation without the consent of the appointing authority

Posted on December 07, 2009
An individual may not withdraw or rescind his or her resignation without the consent of the appointing authorityMatter of Lewis v State Univ. of N.Y. Downstate Med. Ctr., 60 AD3d 765State University Police Officer Robert Lewis submitted his written resignation from his position at the State University of New York Downstate Medical Center [DMC]...

Misusing of employer?s e-mail for ?union election activities? in violation of employer's rules

Posted on December 07, 2009
Misusing of employer?s e-mail for ?union election activities? in violation of employer's rulesDepartment of Environmental Protection v Donas, OATH Index No. 781/09The Department of Environmental Protection filed disciplinary charges pursuant to Section 75 of the Civil Service Law and proved that the employee improperly used his work e-mail account for union activities...

Audio-visual technician dismissed after being found guilty of 14 charges misconduct

Posted on December 07, 2009
Audio-visual technician dismissed after being found guilty of 14 charges misconductMatter of Roth v Manhasset Union Free School Dist., 60 AD3d 771Jeffrey S. Roth, an audio-visual technician employed by Manhasset Union Free School District, was served with disciplinary charges alleging that he was guilty of 16 acts of misconduct...

GML §207-c proposal ruled a non-mandatorily subject of collective bargaining as it did not permit employer to make the initial benefit determination

Posted on December 07, 2009
GML §207-c proposal ruled a non-mandatorily subject of collective bargaining as it did not permit employer to make the initial benefit determinationPort Washington Police District and Port Washington Police Benevolent Association, Inc.,Decisions of PERB Administrative Law Judge Case No...

Sending pornography via Email is misconduct and disqualifies employee for Unemployment Insurance Benefits

Posted on December 06, 2009
Sending pornography via Email is misconduct and disqualifies employee for Unemployment Insurance BenefitsSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq...

Terminating an employee after he or she has been continuously absent on sick leave for one year or longer

Posted on December 04, 2009
Terminating an employee after he or she has been continuously absent on sick leave for one year or longer Matter of Sheeran v New York State Dept. of Transp., 2009 NY Slip Op 08914, decided on December 3, 2009, Appellate Division, Third DepartmentThomas Sheeran was employed as a civil engineer by the New York State Department of Transportation...

E-Mail characterized as ?disruptive? by the employer results in employee?s dismissal

Posted on December 04, 2009
E-Mail characterized as ?disruptive? by the employer results in employee?s dismissalSource: West.Andrews.Editor@ThomsonReuters.comMichael Kaye, a librarian employed by the San Diego County Public Law Library, was terminated from his position after sending an e-mail to a superior that claimed that he and his colleagues "work under an autocratic command structure and that reference staff meetings

Testing employees for unlawful drug use a mandatory subject of collective bargaining

Posted on December 03, 2009
Testing employees for unlawful drug use a mandatory subject of collective bargainingMatter of Deitch v City of New York, 2009 NY Slip Op 52402(U), Decided on November 30, 2009, Supreme Court, Kings County, Justice Arthur M. Schack [Not published in the Official Reports...

Individual seeking accidental disability retirement benefits must show that the injury was ?an unexpected event? suffered in the performance of duty

Posted on December 03, 2009
Individual seeking accidental disability retirement benefits must show that the injury was ?an unexpected event? suffered in the performance of duty1. Matter of DeLaCruz v DiNapoli, 2009 NY Slip Op 08745, Decided on November 25, 2009, Appellate Division, Third Department2...

Abuse of sick leave credit

Posted on December 03, 2009
Abuse of sick leave creditSource: AELE Law Enforcement Legal Center, http://www.aele.org/, Reproduced with permission. Copyright © 2009 AELEArbitrator Richard A. Van Kalker sustained the three-day suspension without pay of a police officer who, after prior warnings, continued to call in sick on a Friday or Monday...

Pension reform bill adopted by the State's Legislature

Posted on December 02, 2009
Pension reform bill adopted by the State's LegislatureS66026 RULES;* Same as A40026, Assembly RulesThe State Legislature passed the Governor?s Program Bill #213 creating a new Tier V plan.Key components of Tier V include: 1. Raising the minimum age at which most civilians can retire without penalty from 55 to 62 and imposing a penalty of up to 38 percent for any civilian who retires prior to age

Reasonable assurance of continued employment defeats claim for unemployment insurance benefits

Posted on December 02, 2009
Reasonable assurance of continued employment defeats claim for unemployment insurance benefits Matter of Marin v Commissioner of Labor, 2009 NY Slip Op 08740, decided on November 25, 2009, Appellate Division, Third DepartmentJose G. Marin was employed as a per diem substitute paraprofessional in the New York City School District during the 2007-2008 school year...

Hearsay testimony in an administrative disciplinary or other administrative proceeding

Posted on December 02, 2009
Hearsay testimony in an administrative disciplinary or other administrative proceedingNYC Department of Education v Robles, OATH Index No. 2275/09The New York City Department of Education sought to terminate Louis Robles, a custodian engineer, on the grounds that he removed school property from a public school for his own personal use and for receiving additional compensation for building a wall

Arbitrator rules that the failure to include the ?proposed penalty? in the disciplinary charges served on the employee a fatal omission

Posted on December 02, 2009
Arbitrator rules that the failure to include the ?proposed penalty? in the disciplinary charges served on the employee a fatal omissionSource: Press Release from School Administrators Association of New York StateA press release issued by the School Administrators Association of New York State reports that ?Liverpool Director of Computer Education and Services Bonnie Ladd?s disciplinary charges

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