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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

5th Circuit Court of Appeals Issues Major Decision Concerning Employer Liability For Misleading Employment References

Posted on June 09, 2008
5th Circuit Court of Appeals Issues Major Decision Concerning Employer Liability For Misleading Employment ReferencesSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/ Reproduced with permission. Copyright © 2008, Mitchell H...

Constructive dismissal

Posted on June 09, 2008
Constructive dismissalGraziano v NYS Division of State Police, USDC, SDNY, 198 F. Supp. 2d 570, Affirmed 275 F. 2d 28 One of the elements in the Graziano case was Graziano's representation that although he had resigned from his position, his separation, in fact, constituted a constructive dismissal...

The Discipline Book

Posted on June 07, 2008
The Discipline Book ? a handbook for administrators, union officials and attorneys involved in disciplinary actions taken against public officers and employees. Professor Mitchell H. Rubinstein, Adjunct Professor, St. John's University, said: ... it is the only comprehensive work in this subject area...

Contracting with consultants

Posted on June 07, 2008
Contracting with consultantsSource: Governor?s Office Press Release -An Executive Order has been promulgated by the Governor setting a new set of stringent standards governing the use of consultant contracts by state agencies. Additionally, a new task force will be put in place to review and report on agencies use of consultants...

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Police officer removed from his position following is conviction of a crime involving conduct in violation of his oath of office

Posted on June 06, 2008
Police officer removed from his position following is conviction of a crime involving conduct in violation of his oath of officeMatter of Feola v Carroll, 2008 NY Slip Op 04948, Decided on June 5, 2008, Court of AppealsCity of New Rochelle police officer Donald Feola, was terminated from his position pursuant to Section 30...

Employee terminated after being found guilty of soliciting and accepting a gratuity

Posted on June 06, 2008
Employee terminated after being found guilty of soliciting and accepting a gratuityMatter of Matthew Lowe v Doherty, 2008 NY Slip Op 04941, Decided on June 3, 2008, Appellate Division, First Department The Commissioner of New York City Department of Sanitation dismissed Matthew Lowe from his position as a sanitation worker after finding him guilty of ?solicited and accepted a gratuity in exchange for collecting trade waste...

Employment-at-will status defeats claim of having a property interest in continued employment

Posted on June 06, 2008
Employment-at-will status defeats claim of having a property interest in continued employmentSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/ Reproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St...

Transfer and reassignment

Posted on June 06, 2008
Transfer and reassignmentNicosia v Roets, App. Div., 4th Dept. 294 A.D.2d 855 The Nicosia decision provides an opportunity to explore the difference between a transfer and a reassignment, two different types personnel actions that are frequently confused...

US Court of Appeals, Third Circuit, rules city?s EMTs are eligible for overtime under the Fair Labor Standards Act

Posted on June 05, 2008
US Court of Appeals, Third Circuit, rules city?s EMTs are eligible for overtime under the Fair Labor Standards ActRichard Lawrence, et al, v City of Philadelphia; Donald H. Alston v City of Philadelphia, USCA 3d, Docket # 06-4564. May 28, 2008 [On Appeal from the United States District Court, for the Eastern District of Pennsylvania, (D...

The Suffolk Regional OTB Corporation may not provide health benefits to its directors

Posted on June 05, 2008
The Suffolk Regional OTB Corporation may not provide health benefits to its directorsInformal Opinions of the Attorney General, 2008-3 The Attorney General advised the Suffolk Regional OTB Corporation that its directors may not receive health benefits from the county nor may they participate in the New York State Health Insurance Plan at their own expense...

Timeliness of evidence

Posted on June 05, 2008
Timeliness of evidenceWojewodzic v O'Neill, App. Div., 3rd Dept., 295 A.D.2d 670Section 75.4 of the Civil Service Law requires that disciplinary action against an individual be initiated within eighteen months of the occurrence of the alleged act or acts of incompetency or misconduct except in cases where the alleged incompetency or misconduct charged would, if proved in a court of appropriate jurisdiction, constitute a crime...

Subpoena Duces Tecum

Posted on June 05, 2008
Subpoena Duces TecumBd. of Educ. v Hankins, App. Div., 2nd Dept., 294 A.D.2d 360, Motion for appeal denied, 99 NY2d 610 From time to time one reads about a case involving the serving of a subpoena duces tecum. The purpose of a subpoena duces tecum is to compel the production of documents that are relevant and material to facts at issue in a pending judicial or administrative proceeding...

How Web 2.0 Influences E-Discovery

Posted on June 04, 2008
How Web 2.0 Influences E-DiscoverySource: The Virtual Chase, Ballard Spahr Andrews & Ingersoll, LLP; Free subscriptions available at http://www.virtualchase.com/tvcalert/. Reproduced with permission. Copyright © 2008, Ballard Spahr Andrews & Ingersoll, LLP...

The Discipline Book

Posted on June 04, 2008
The Discipline Book ? an electronic handbook for administrators, union officials and attorneys involved in disciplinary actions taken against public officers and employees ? is now available from the BookLocker at: http://booklocker.com/books/3449.html If you win, or better yet, avoid, one lawsuit or grievance based on information found in The Discipline Book you probably will save many times its price...

Governor Paterson announces release of first agency budget reduction plans

Posted on June 04, 2008
Governor Paterson announces release of first agency budget reduction plansSource: Governor?s Press OfficeThe Division of the Budget (DOB) has posted the first 23 approved financial management plans submitted by executive commissioners in response to Governor Paterson?s call for a 3...

Criminal record of an applicant not an automatic bar to appointment

Posted on June 04, 2008
Criminal record of an applicant not an automatic bar to appointmentValerie Black v NYS Office of Mental Retardation and Development Disabilities, 2008 NY Slip Op 28205, Decided on March 28, 2008, Supreme Court, Monroe County, Justice Evelyn Frazee Valerie Black was hired by Arc of Monroe County [Arc] as an individual support specialist-residential subject to her passing the mandatory criminal background check and approval process by New York State Office of Mental Retardation and Developmental Disabilities (OMRDD)...

The Risk of Using Independent Contractors

Posted on June 04, 2008
The Risk of Using Independent ContractorsReproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.The Risk of Using Independent Contractors is an interesting May 15, 2008 New York Law Journal article which discusses the risks in classifying individuals as independent contractors verses employees...

Statute of limitations for disciplinary action

Posted on June 04, 2008
Statute of limitations for disciplinary actionEl Bey v New York City Dept. of Corrections, App. Div., First Dept., 294 A.D.2d 164In the El Bey case, the exception to the statute of limitations for filing disciplinary action pursuant to Section 75 of the Civil Service Law where the charge would otherwise constitute a crime was applied by the Appellate Division in sustaining disciplinary action taken against Yashua Amen Shekhem El Bey...

Positive test for drugs

Posted on June 03, 2008
Positive test for drugsWilliams v Nicoletti, App. Div., 2nd Dept., 295 A.D.2d 353 City of White Plains motor equipment operator Robert Williams held a New York State Commercial Driver's License. The City had Williams submit to a random drug test because, it contended, federal law required the City to conduct random drug testing of its employees holding a commercial driver's license...

10th Circuit Issues Important Association Discrimination Decision Under the ADA

Posted on June 03, 2008
10th Circuit Issues Important Association Discrimination Decision Under the ADASource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St...

Exhaustion of administrative remedies

Posted on June 03, 2008
Exhaustion of administrative remediesFormica v Huntington, App. Div., 2nd Dept., 295 A.D.2d 400 The exhaustion of the administrative remedies available to an individual is generally viewed as a condition precedent to the individual being able to bring a law suit challenging some act or mission by an administrative agency...

Public worker to answer work related inquiry

Posted on June 02, 2008
Public worker to answer work related inquiryDelgado v Kerik, App. Div., 1st Dept., 294 A.D.2d 227 One of the issues in the Delgado case concerned the duty of a public officer or employee to answer questions directly related to the performance of his or her duties in the course of an administrative investigation or official interview...

Application for retroactive credit/membership in the NYS Employees? Retirement System based on uncompensated service rejected

Posted on June 02, 2008
Application for retroactive credit/membership in the NYS Employees? Retirement System based on uncompensated service rejectedMatter of Bernard Carabello v DiNapoli, 2008 NY Slip Op 04815, Decided on May 29, 2008, Appellate Division, Third Department Bernard Carabello was a resident of the former Willowbrook State School...

Initiating disciplinary action

Posted on June 02, 2008
Initiating disciplinary actionAppeal of J.K., Commissioner of Education Decision 14,705 J.K., a tenured high school teacher, appealed the Glen Cove School District's dismissal of his sexual harassment complaint to the Commissioner of Education. In the course of a meeting to discuss a memorandum circulated by one teacher to the other teachers in the department, J...

School District Can Refuse To Hire Ex-Felons

Posted on June 02, 2008
School District Can Refuse To Hire Ex-FelonsSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved...

Inability to get along with co-workers

Posted on June 02, 2008
Inability to get along with co-workersGines v Comm. of Labor, App. Div., 3rd Dept., 294 A.D.2d 748Jose Gines worked for the New York State Unified Court System in the law library at the Appellate Division, Second Department. He was later placed in a position having a similar title and pay in the records room at Supreme Court, Kings County...

The Discipline Book

Posted on June 02, 2008
The Discipline Book ? an electronic handbook for administrators, union officials and attorneys involved in disciplinary actions taken against public officers and employees ? is now available from the BookLocker. If you win, or better yet, avoid, one lawsuit or grievance based on information found in The Discipline Book you probably will save many times its price...

Employee ultimately terminated not entitled to back salary for the period when the penalty to be imposed was being reconsidered

Posted on May 30, 2008
Employee ultimately terminated not entitled to back salary for the period when the penalty to be imposed was being reconsideredHershkowitz v New York City Dept. of Educ., 2008 NY Slip Op 04742, Decided on May 27, 2008, Appellate Division, First Department The New York City Department of Education [DOE] filed disciplinary charges against Cary Hershkowitz pursuant to Education Law § 3020-a...

6th Circuit Holds That Labor Arbitration Decision Does Not Bar ADA Litigation

Posted on May 30, 2008
6th Circuit Holds That Labor Arbitration Decision Does Not Bar ADA LitigationSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/ Reproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St...

Negotiated disciplinary procedures

Posted on May 30, 2008
Negotiated disciplinary proceduresFortune v Div. of State Police, App. Div., 3rd Dept., 293 A.D.2d 154 The issue in the Fortune case: May a collective bargaining disciplinary procedure supersede statutory disciplinary due process requirements such as those set out in Section 75 of the Civil Service Law or Section 3020-a of the Education Law? In a word: yes! The Appellate Division affirmed the principle that an alternative disciplinary procedure negotiated pursuant to the Taylor Law constitutes collateral estoppel to any claim by an employee that he or she is entitled to any disciplinary due process rights otherwise available to an individual under State law...

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