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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

Filling the vacancy of Lieutenant Governor

Posted on July 08, 2009
Filling the vacancy of Lieutenant GovernorArticle III, Section 9, New York State ConstitutionWith all of the discussions on whether it is possible to appoint an individual to the position of Lieutenant Governor, here is one additional possibility:Article III, §9 of the State Constitution provides that ?A majority of each house shall constitute a quorum to do business...

Vacating an arbitration award in situations where the decision exceeds a specific, enumerated limitation on the arbitrator's power

Posted on July 07, 2009
Vacating an arbitration award in situations where the decision exceeds a specific, enumerated limitation on the arbitrator's powerMatter of Massena Cent. School Dist. v Massena Confederated School Employees' Assn., NYSUT, AFL-CIO, 2009 NY Slip Op 05674, decided on July 2, 2009, Appellate Division, Third DepartmentEric Fetterly had a dispute with Massena Central School District concerning his (1) Absenteeism, (2) the impact of his workers' compensation leave on his leave credits...

Designating a hearing officer to consider Civil Service Law Section 75 disciplinary charges

Posted on July 06, 2009
Designating a hearing officer to consider Civil Service Law Section 75 disciplinary chargesMatter of Perryman v Village of Saranac Lake, 2009 NY Slip Op 05660, Decided on July 2, 2009, Appellate Division, Third DepartmentDonald G. Perryman, the Village of Saranac Lake Chief of Police, was suspended and charged with misconduct and incompetence* pursuant to Civil Service Law §75...

Recap of Supreme Court's labor & employment law decisions

Posted on July 06, 2009
Recap of Supreme Court's labor & employment law decisionsSource: Posted on the Internet in CCH Workday at http://cch-workday.blogspot.com:80/ . Reproduced with permission. Copyright© CCH 2009, All rights reserved.Locke v Karass. A union representing Maine's state employees may charge fee-paying nonmembers for the national, or "extra-local" litigation expenses incurred by its parent union, a unanimous Supreme Court ruled, holding that the First Amendment permits such charges (January 21, 2009)...

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State Comptroller Thomas P. Dinapoli on processing payment to State Senators for certain monies

Posted on July 03, 2009
State Comptroller Thomas P. Dinapoli on processing payment to State Senators for certain moniesSource: Office of the State Comptroller press releaseThe State Comptroller has directed his staff to stop processing any Senate vouchers, including those for the Senators? travel expenses...

?My fiancée got me fired?: The evolution of retaliation claims

Posted on July 03, 2009
?My fiancée got me fired?: The evolution of retaliation claims*Source: Posted on the Internet in CCH Workday at http://cch-workday.blogspot.com/ . Reproduced with permission. Copyright© CCH 2009, All rights reserved."With the Sixth Circuit?s recent pro-employer ruling on associational retaliation, and a current split on the matter unfolding among the circuits, this issue may well be headed to the Supreme Court next term?to a Court under Chief Justice Roberts that has been decisively pro-employee in its retaliation decisions...

Employee denied unemployment insurance benefits after resigning despite assurances of continued employment notwithstanding a layoff

Posted on July 02, 2009
Employee denied unemployment insurance benefits after resigning despite assurances of continued employment notwithstanding a layoffMatter of Ruggiero v Commissioner of Labor, 2009 NY Slip Op 05236, decided on June 25, 2009, Appellate Division, Third DepartmentElaine Ruggiero learned that resigning from one's position in anticipation of being laid off does not constitute good cause for leaving one's employment when she attempted to overturn the Commissioner of Labor?s determination denying her application for unemployment insurance...

Employer can avoid disparate-impact liability based evidence that its test was valid

Posted on July 01, 2009
Employer can avoid disparate-impact liability based evidence that its test was validRicci Et Al. V. DeStefano, USSC, No. 07?1428, decided June 29, 2009 [Together with No. 08?328, Ricci et al. v. DeStefano et al.]The summary of the Ricci v DeStefano decision by the United State Court of Appeals, Second Circuit, was captioned ?The Merit System and public employment ? does it have a future?? [see http://publicpersonnellaw...

School district directed to provide for the defense and indemnification of a teacher being sued in a civil action by another teacher in the district

Posted on June 30, 2009
School district directed to provide for the defense and indemnification of a teacher being sued in a civil action by another teacher in the districtMatter of Cotter v Board of Educ. of Garden City Union Free School Dist., 2009 NY Slip Op 05336, decided on June 23, 2009, Appellate Division, Second DepartmentTwo sections in the Education Law concern providing for the defense and indemnification of school officials and employees in the event they are named as defendants in a civil action alleging acts or omissions that occurred in the performance of their official duties...

New York?s Administrative Procedures Act does not require a State agency to issue a declaratory ruling when requested

Posted on June 30, 2009
New York?s Administrative Procedures Act does not require a State agency to issue a declaratory ruling when requestedMatter of Humane Society of United States, Inc. v Brennan, 2009 NY Slip Op 05062, Decided on June 18, 2009, Appellate Division, Third DepartmentThe genesis of this lawsuit was the New York State?s Department of Agriculture and Markets' declining to issue a declaration that foie gras* is an adulterated food product within the meaning of Agriculture and Markets Law §200...

Authority of the New York City?s Department of Investigation to compel an individual to comply with an ?investigative subpoena?

Posted on June 29, 2009
Authority of the New York City?s Department of Investigation to compel an individual to comply with an ?investigative subpoena?Matter of Parkhouse v Stringer, 2009 NY Slip Op 05205, decided on June 25, 2009, Court of AppealsVirginia Parkhouse's testimony at a public hearing before a New York City agency prompted a complaint by a public official, followed by a subpoena to Parkhouse from the New York City Department of Investigation (DOI)...

Employee privacy when using the employer?s computer

Posted on June 29, 2009
Employee privacy when using the employer?s computerSource: CCH ? Workday BlogCCH?s Workday Blog discusses Brahmana v Lembo, N.D. Cal. a case wherein ?one employee, one employer and a federal trial court in California are about to at least decide if monitoring down to the very keystroke violates privacy rights, or at least those rights under the Electronic Communications Privacy Act (ECPA)...

In determining ?final average salary,? including additional payments for working on vacation days would credit the hours in a paid vacation day twice

Posted on June 26, 2009
In determining ?final average salary,? including additional payments for working on vacation days would credit the hours in a paid vacation day twiceMatter of Port Authority Police Benevolent Association, Inc. v Anglin, 2009 NY Slip Op 05198, Decided on June 24, 2009, Court of AppealsFor a period of time after the events of September 11, 2001, members of the Port Authority Police Department of New York and New Jersey, were required to work 12-hour shifts and all vacation, regular days off, personal days, and compensatory time off were cancelled...

Employers must record injuries resulting from ?horseplay? at work

Posted on June 26, 2009
Employers must record injuries resulting from ?horseplay? at workSource: Jackson Lewis LLP. Reproduced with permission. Copyright © 2009, Jackson Lewis. Originally published by Jackson Lewis, LLP, at http://www.jacksonlewis.com/ . All rights reserved...

Missing examination application deadlines due to serving on active military duty

Posted on June 26, 2009
Missing examination application deadlines due to serving on active military dutySource: New York State Department of Civil Service Personnel Services DivisionThe New York Department of Civil Service has published Advisory Memorandum #09-03, Amendment to Section 243-b Military Law, updating its Advisory Memorandum State Personnel Management Manual Advisory Memorandum #05-05...

Supremes vacate ruling that nonsignatories may not enforce arbitration pact

Posted on June 26, 2009
Supremes vacate ruling that nonsignatories may not enforce arbitration pactSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St...

Individual employed by a private entity and paid with funds provided by the City of New York is not ?paid by the City?

Posted on June 25, 2009
Individual employed by a private entity and paid with funds provided by the City of New York is not ?paid by the City?Matter of Ivan v New York City Dept. of Health & Mental Hygiene, 2009 NY Slip Op 05189, decided on June 23, 2009, Decided on June 23, 2009Richard Ivan filed a petition pursuant to Article 78 of the Civil Practice Law and Rules in an effort to compel the New York City Department of Health and Mental Hygiene (DHMH) to take the necessary actions to permit him to obtain the benefits of membership in the New York City Employees' Retirement System (NYCERS)...

Legislation directing the State Comptroller to audit charter schools held unconstitutional

Posted on June 25, 2009
Legislation directing the State Comptroller to audit charter schools held unconstitutionalMatter of New York Charter Schools Assn., Inc. v DiNapoli, 2009 NY Slip Op 05204, Decided on June 25, 2009, Court of AppealsThe Court of Appeals, reversing a lower court?s decision, held that the State Legislature violated Article V, §1 of the New York State Constitution when it assigned and directed the State Comptroller to audit charter schools...

State Senate required to provide employee payroll records in response to a Freedom of Information Law request

Posted on June 24, 2009
State Senate required to provide employee payroll records in response to a Freedom of Information Law requestMatter of Polokoff-Zakarin v Boggess, 2009 NY Slip Op 03823, decided on May 14, 2009, Appellate Division, Third DepartmentPenny Polokoff-Zakarin filed a Freedom of Information [FOIL] request seeking documents concerning an employee of the State Senate, including the individual?s date of employment and date of termination of employment, the title or position of employment held, the salary paid, and ?complete time and attendance records for [the individual] employee of the State Senate sometime between 1990 and 2007...

Providing police and fire services in times of fiscal stress

Posted on June 24, 2009
Providing police and fire services in times of fiscal stressSource: AELE Law Enforcement Legal Center, http://www.aele.org/, Reproduced with permission. Copyright © 2009 AELEDoes a municipality or other political subdivision of a state have a legal duty to maintain a police force or provide firefighting services?The following are excerpts from AELE?s June 2009 issue of its Monthly Law Journal concerning this question and may be of particular relevance in view of the fact that a number of municipalities have been reported to be considering consolidating or abolishing such services because of budget problems...

Teacher's blog caused a disruption resulting in no First Amendment protection

Posted on June 24, 2009
Teacher's blog caused a disruption resulting in no First Amendment protectionSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St...

The doctrine of the exhaustion of administrative remedy

Posted on June 23, 2009
The doctrine of the exhaustion of administrative remedyMatter of Mirenberg v Lynbrook Union Free School Dist. Bd. of Educ., 2009 NY Slip Op 05138, decided on June 16, 2009, Appellate Division, Second DepartmentIn this decision the Appellate Division set out a synopsis of the doctrine of the exhaustion of administrative remedy, noting that:1...

NLRB?s ruling that terminating non-union employees for having picketed its health clinic was lawful overturned

Posted on June 23, 2009
NLRB?s ruling that terminating non-union employees for having picketed its health clinic was lawful overturnedCivil Service Employees Association, Local 1000, AFSCME, v National Labor Relations Board, United States Court of Appeals for the Second Circuit, Docket No...

Termination for ?medical incompetence? based on 219 days of absence in a two-year period

Posted on June 23, 2009
Termination for ?medical incompetence? based on 219 days of absence in a two-year periodDep't of Correction v. Duclet, OATH Index No. 972/09Administrative Law Judge Faye Lewis found that New York City Correction Officer Ruby Duclet had been absent excessively since 2007, reporting sick 219 days during a two year, one month period...

Under certain circumstances, a municipalilty may modify or discontinue providing health insurance benefits to retirees

Posted on June 22, 2009
Under certain circumstances, a municipalilty may modify or discontinue providing health insurance benefits to retirees Matter of Kapell v Incorporated Village of Greenport, 2009 NY Slip Op 05134, decided on June 16, 2009, Appellate Division, Second DepartmentDavid E...

Intermittent absences during approved FMLA

Posted on June 22, 2009
Intermittent absences during approved FMLASmith v. CallTech Communications, LLC, No. 2:07-cv-144, 2009 U.S. Dist. LEXIS 48518 (S.D. Ohio June 10, 2009).Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/Copyright © 2009. All rights reserved by Carl C...

Termination of employment recommended for employee found guilty of harassment of fellow employee based on co-worker?s religion

Posted on June 22, 2009
Termination of employment recommended for employee found guilty of harassment of fellow employee based on co-worker?s religionDep't of Parks & Recreation v. Mullusky, OATH Index No. 2041/09Administrative Law Judge John Spooner found that park worker Chris Mullusky had harassed and mistreated a Jewish co-worker because of the co-worker?s religion in violation of the City's Equal Employment Opportunity policy...

An appeal to the Commissioner of Education must contain a clear statement showing an entitlement to relief and a demand for such relief

Posted on June 19, 2009
An appeal to the Commissioner of Education must contain a clear statement showing an entitlement to relief and a demand for such reliefAppeal of Scott A. Stepien from action of the Board of Education of the Lewiston-Porter Central School District, William H...

Employee suspended for 30-days without pay after being found guilty of failing to comply with a superior?s lawful order

Posted on June 19, 2009
Employee suspended for 30-days without pay after being found guilty of failing to comply with a superior?s lawful orderMatter of Nash v Kelly, 2009 NY Slip Op 04723, decided on June 9, 2009, Appellate Division, First DepartmentThe New York City Police Commissioner adopted a Hearing Officer?s determination that found Police Detective Andrew Nash guilty of failing to comply with a lawful order of a superior officer concerning ?licensing information on a computer program used by the Department? and was discourteous to that officer when questioned about such refusal, The penalty imposed: a 30-day suspension without pay...

The State Constitution?s provisions addressing a vacancy in the office of Lieutenant Governor

Posted on June 18, 2009
The State Constitution?s provisions addressing a vacancy in the office of Lieutenant GovernorArticle IV, §6 of the State ConstitutionRobert Ward, of the Rockefeller Institute of Government, is reported to have said that ?On its face, the constitution does not rule out two votes,? apparently referring to the claim of a coalition of Republicans and a Democrat advancing the theory that the State constitution provides ?Sen...

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