Labor & Employment Law

Involuntary disability retirement

Posted on September 22, 2009
Involuntary disability retirementRockland Co. PBA v Collins, USDC SDNY, 97CIV7827Burns v Collins, NYS Supreme Court, 258 A.D.2d 692Anyone familiar with police and fire disability issues in New York State is aware that the finances of many municipal governments are strained by the obligation to pay disability benefits to injured fire and police officers while at the same time maintaining public safety services with able-bodied personnel...

Jurisdictional classification

Posted on September 22, 2009
Jurisdictional classificationGrosh v City of Troy, 246 A.D.2d 235The failure to properly process a request to jurisdictionally classify an otherwise classified service position in the exempt, noncompetitive or labor class means that the position continues to be a position in the competitive class...

Investigations and the Taylor law

Posted on September 22, 2009
Investigations and the Taylor lawCity of New York v DeCosta, 95 NY2d 2731. Is New York City?s Department of Investigation?s investigatory procedures restricted by a labor contract between the City and the Uniformed Fire Officers Association? and2. Does a determination of the Board of Collective Bargaining of the City of New York that this dispute is a subject for arbitration between the parties improperly impinges on public policy?The Court of Appeals concluded that public policy bars enforcement of a provision in a collective bargaining agreement that would limit the power of the New York City?s Department of Investigation from interrogating city employees in a criminal investigationThe issue arose when the Department wanted to question a number of fire officers in connection with its investigation of a false alarm that was allegedly to be used for a false claim of a line of duty injury for a fraudulent pension claim...

Governor has the power to appoint an individual to fill the vacancy in office of Lieutenant-Governor

Posted on September 22, 2009
Governor has the power to appoint an individual to fill the vacancy in office of Lieutenant-Governor Skelos v Paterson, 2009 NY Slip Op 06585, Decided on September 22, 2009, Court of AppealsThe issue before the Court of Appeals: Does the Governor of the State of New York have the authority to fill a vacancy in the office of Lieutenant-Governor by appointment...

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Fraternization with subordinates

Posted on September 22, 2009
Fraternization with subordinatesWorden v Commissioner of Labor, App. Div., 252 A.D.2d 711Craig W. Warden had been discharged from his position because he had violated the employer?s policy prohibiting fraternization by employees with their subordinates...

School district not required to provide for defense, nor provide for indemnification, in lawsuit it brought against former school board member

Posted on September 21, 2009
School district not required to provide for defense, nor provide for indemnification, in lawsuit it brought against former school board memberMatter of Barkan v Roslyn Union Free School Dist., 2009 NY Slip Op 06541, decided on September 15, 2009, Appellate Division, Second DepartmentMichael F...

Same offense, different penalties

Posted on September 21, 2009
Same offense, different penaltiesWagner v Kerik, 298 A.D.2d 322Jones v Kerik, 298 A.D.2d 308Two different employees serving in the same agency are charged and found guilty of the same type of misconduct but the appointing authority imposes different penalties on each...

Manifest error voids arbitration

Posted on September 21, 2009
Manifest error voids arbitrationHalligan v. Piper Jaffray Inc., CA2, 148 F.3d 197It was considered ?black letter law? that a court would not vacate an arbitrator?s award for errors of law or fact committed by the arbitrator. In Halligan, however, the court did just that based on its finding ?manifest disregard? of the law by the arbitrator...

May an individual resign from his or her position by e-mail?

Posted on September 21, 2009
May an individual resign from his or her position by e-mail?Appeal of Joanne Boisvert-Fraser from action of the Board of Education of the City School District of the City of Mechanicville and its District Clerk regarding resignation, Decisions of the Commissioner of Education 15,983Although the Commissioner dismissed the appeal submitted by Joanne Boisvert-Fraser as moot and did not comment on its merits, the appeal raises an interesting issue ? is a resignation submitted by a public officer or employee electronically by e-mail or as a ?text message? effective?The general rule in the public service is that a resignation must be in writing and takes effect on the date indicated or thirty days after delivery, whichever first occurs...

Longevity pay and retirement

Posted on September 21, 2009
Longevity pay and retirementTooley v McCall, Appellate Division, 252 A.D.2d 794Lowell J. Tooley retired from the Village of Scarsdale after forty years of service. In the course of the three years preceding his retirement the Village paid Tooley about $80,000 under an ?enhanced compensation plan? [ECP] in addition to his regular salary...

Proof of mandatory membership required to effect a "tier" change

Posted on September 18, 2009
Proof of mandatory membership required to effect a "tier" changeMatter of Giordano v New York State Teachers' Retirement Sys., 2009 NY Slip Op 51910(U), Decided on September 2, 2009, Supreme Court, Albany County, Judge Harold F. Zwack [Not included in the official reported]Matthew Giordano filed a petition pursuant to CPLR Article 78 in an effort to have a vacate the New York State Teachers? Retirement System?s decision not to change his ?tier status with in the retirement system? from Tier II to Tier I...

News Related to Equal Employment Opportunity

Posted on September 18, 2009
News Related to Equal Employment OpportunitySource: iNews © 2009 John D. Sargent - eeoinews@yahoo.com - All Rights ReservedUnited State Supreme CourtPublic Citizen?s most recent Sup Ct Watch list click hereSCOTUSblog?s most recent Petitions to Watch click hereRoss Runkel?s US Sup Ct Employment Law Cases ? Pending & decided click hereOctober Term 2009 - Selected Cases Pending CertiorariAdam v...

Processing PERB appeals

Posted on September 18, 2009
Processing PERB appealsJardim v PERB, 265 A.D.2d 329In this action the Appellate Division held that LeRoy Jardim?s petition seeking review of the determination of the New York State Public Employment Relations Board was properly dismissed he failed to exhaust his administrative remedies, citing Watergate II Apts...

Employee's promotion as an asset in divorce proceedings

Posted on September 18, 2009
Employee's promotion as an asset in divorce proceedingsBystricky v Bystricky, Supreme Court, Nassau County, 177 Misc 2d 914Although this case deals with the marital assets of a police officer involved in a divorce, the decision suggests the court?s general approach to evaluating benefits resulting from promotions in the public service in divorce proceedings...

Unit member has limited rights in processing his or her grievance to arbitration

Posted on September 18, 2009
Unit member has limited rights in processing his or her grievance to arbitrationRine v Higgins, 244 A.D.2d 963After his union, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 264, demanded arbitration challenging Rine?s termination from his position as an Erie deputy sheriff, Rine asked a State Supreme Court justice to issue a declaratory judgment establishing his right to choose his own attorney to represent him in a grievance brought by the Union arising out of his discharge...

Status of employees may lead to tenure by estoppel

Posted on September 18, 2009
Status of employees may lead to tenure by estoppelWalters v Amityville UFSD, Appellate Division, 251 A.D.2d 590The Walters decision demonstrates the need for employers to clearly identify in its personnel records the professional obligation of each employee (e...

Refusing to allow an employee to

Posted on September 17, 2009
Refusing to allow an employee to withdraw a letter of resignationMatter of Pishotti v New York State Thruway Authority, 38 A.D.3d 1122James Pishotti, a construction equipment operator, had been placed on disciplinary probation by the Thruway Authority for violations of its policy against violence in the workplace...

Attorney-client privilege

Posted on September 17, 2009
Attorney-client privilegeRe Lindsey Grand Jury Testimony, CADC, 148 F.3d 1100The attorney-client privilege has been frequently relied upon in an effort to bar the disclosure of conversations between an individual and his or her attorney. The decision by the U...

Breaching test security

Posted on September 17, 2009
Breaching test securitySettlement of disciplinary chargesThe School District filed disciplinary charges against a fifth grade teacher alleging that she had allowed students to correct their incorrect answers in a district-wide mathematics proficiency test, thereby compromising the test?s validity...

Employee terminated following positive random test for illegal drugs

Posted on September 17, 2009
Employee terminated following positive random test for illegal drugsMatter of Randall Rice v Thomas Belfiore, 15 Misc.3d 1105A disciplinary action was instituted after Randall Rice, a police officer with the County?s Department of Public Safety [DPS], tested positive for marijuana after a random drug test...

Financing government activities - is it a fee or a tax? -- The duck rule

Posted on September 17, 2009
Financing government activities - is it a fee or a tax? -- The duck ruleSource: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2009, All rights reserved http://lawprofessors.typepad.com/adminlaw/In these times of financial difficulties administrators and legislators frequently attempt to devise alternative ways to increase revenue to support govenment activites...

The doctrine of primary jurisdiction applied in case where an administrative remedy is available

Posted on September 16, 2009
The doctrine of primary jurisdiction applied in case where an administrative remedy is availableAppeal of Denise M. Ferencik from action of the Board of Education of the Amityville Union Free School District regarding preferred eligibility rights, Decisions of the Commissioner of Education, Decision No...

Employee terminated following positive random test for illegal drugs

Posted on September 16, 2009
Employee terminated following positive random test for illegal drugsMatter of Randall Rice v Thomas Belfiore, 15 Misc.3d 1105A disciplinary action was instituted after Randall Rice, a police officer with the County?s Department of Public Safety [DPS], tested positive for marijuana after a random drug test...

Employees assume the risks inherent in performing the duties of their position

Posted on September 16, 2009
Employees assume the risks inherent in performing the duties of their positionWitkowski v Milwaukee County, USCA 7th Circuit, 480. F.3d 511Laron Ball was on trial murder. Ball had threatened mayhem if convicted, so the court took extra precautions. When the jury found Ball guilty, Ball seized a gun from deputy sheriff Michael J...

Demand for premium pay where union cannot negotiate a disciplinary procedure a mandatory subject of collective bargaining

Posted on September 15, 2009
Demand for premium pay where union cannot negotiate a disciplinary procedure a mandatory subject of collective bargainingMatter of City of New York v New York State Public Employment Relations Board, 2008 NY Slip Op 52693(U), Decided on January 18, 2008, Supreme Court, Albany County, Judge Henry F...

Discrimination against minority educators

Posted on September 15, 2009
Discrimination against minority educatorsDecisions of the Commissioner of Education #13994Fanny Ogbununga, claiming that the Union Free School District of the Tarrytowns had a policy of not appointing minorities to professional positions, appealed to the Commissioner of Education because she had applied, but was not selected, for a social sciences teacher vacancy...

Definition of a police officer

Posted on September 15, 2009
Definition of a police officerRossi v Metropolitan Trans. Auth., App Div, 249 A.D.2d 307After the New York Metropolitan Transportation Authority [MTA] and the Long Island Rail Road [LIRR] initiated a ?no fare - police ride program,? a dispute arose over the definition of a police officer...

State workforce reduction plans

Posted on September 14, 2009
State workforce reduction plans announcedSource: New York State Division of the BudgetOn September 14, 2009 the Division of the Budget announced that its preliminary review of New York State agency Workforce Reduction Plans (WRPs) has been completed.These plans are projected to achieve $260...

Vague and conclusory allegations results in dismissal of Article 78 petition

Posted on September 14, 2009
Vague and conclusory allegations results in dismissal of Article 78 petitionWharry v Lindenhurst Union Free School District, 2009 NY Slip Op 06424, Decided on September 8, 2009, Appellate Division, Second DepartmentMarissa Wharry sued the Lindenhurst Union Free School District after it declined to renew her annual contract as varsity gymnastics coach...

City of New York not responsible for acts or omissions by employees of the New York City Board of Education

Posted on September 14, 2009
City of New York not responsible for acts or omissions by employees of the New York City Board of EducationMcClain v City of New York, 2009 NY Slip Op 06409, Decided on September 8, 2009, Appellate Division, Second DepartmentIn an action to recover damages for personal injuries, Naquan McClain and other plaintiffs sued the City of New York for alleged negligent and intentional acts and omissions by certain employees of the New York City Board of Education...

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