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.

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Last Entry: November 05, 2020 at 10:02:02

Provisional appointments

Posted on April 04, 2008
Provisional appointmentsCivil Service Law 65.4From time to time your editor has commented that "... under certain circumstances a provisional appointment may mature into a permanent, "tenured" appointment by operation of law...."This statement usually results in a number of readers asking: Isn't it "black letter law" that a provisional appointment can never "mature" in a permanent one? Such cases as Matter of Gaiser, 15 AD2d 793, support of this position...

Injury incurred on shift conducting personal business not covered by workers? compensation

Posted on April 01, 2008
Injury incurred on shift conducting personal business not covered by workers? compensationMatter of Scott M. Mills v New York State Police, 41 A.D.3d 1083, Appellate Division, Third Department New York State Trooper Scott M. Mills appealed a ruling by the Workers? Compensation Board holding that he had not sustained an accidental injury arising out of and in the course of his employment...

Employee sues public employer for alleged malicious prosecution

Posted on April 01, 2008
Employee sues public employer for alleged malicious prosecutionDonald Perryman v Village of Saranac Lake, 41 A.D.3d 1080, Appellate Division, Third DepartmentDonald Perryman had served as the Village of Saranac Lake?s police chief for some 10 years. Based on complaints it had received concerning Perryman?s performance of his duties, the Village?s Board of Trustees suspended him from his position and hired a private investigation firm, McKee and Associates, Inc...

Only matters covered by a collective bargaining agreement are subject to adjudication through the contract grievance procedure

Posted on April 01, 2008
Only matters covered by a collective bargaining agreement are subject to adjudication through the contract grievance procedureMatter of Allison Neumann v Town of Irondequoit Supervisor, 2008 NY Slip Op 02657, Decided on March 21, 2008, Appellate Division, Fourth DepartmentClaiming that the Town of Irondequoit violated Civil Service Law 壯72, 80 and 81 by placing her on an involuntary leave of absence and by then abolishing her position and terminating her employment, Allison Neumann sued seeking a court order reinstating her to her position...

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Jarema credit

Posted on April 01, 2008
Jarema creditEmma v Schenectady CSD, USDC, NDNY, 28 F. Supp. 2d 711, affirmed, 1999 U.S. App. LEXIS 27395 Jarema credit and changing employers were among the employment/tenure issues considered in this 30-page opinion by U.S. District Court Judge Thomas J...

限限限限限限限限限限Employee organization status

Posted on April 01, 2008
限限限限限限限限限限Employee organization statusMatter of Connetquot Clerical Association, 31 PERB 3057 When a recognized or certified employee organization is challenged by another body seeking to represent unit employees, one of the issues that can be raised is that the competitive body is not an ?employee organization? for the purposes of the Taylor Law...

Individual has the burden of demonstrating that the decision to abolish his or her position was made in bad faith

Posted on March 31, 2008
Individual has the burden of demonstrating that the decision to abolish his or her position was made in bad faithMatter of Linney v City of Plattsburgh, 2008 NY Slip Op 02076, Decided on March 13, 2008, Appellate Division, Third DepartmentIn December 2005 the City of Plattsburgh told its Human Resources Director, John R...

Survivor ruled not entitled to an increased statutory death benefit

Posted on March 31, 2008
Survivor ruled not entitled to an increased statutory death benefitMatter of Arlene Lustyik v Village of Tarrytown, 41 A.D.3d 1066, Appellate Division, Third DepartmentIn 1987, a volunteer firefighter suffered a work-related myocardial infarction and was subsequently classified as permanently totally disabled...

Decision to terminate a probationer based on supervisors? reports

Posted on March 31, 2008
Decision to terminate a probationer based on supervisors? reportsMatter of Dorothy H. Bonanno v Nassau County Civil Service Commission2008 NY Slip Op 30754(U) March 5, 2008 Supreme Court, Nassau County Docket Number: 2549-07, Judge Kenneth A. DavisIn this Article 78 Dorothy H...

The Discipline Book

Posted on March 31, 2008
The Discipline Book2008 Edition, 559 pagesThe Discipline Book is for administrators, union officials and attorneys involved in disciplinary actions taken against public officers and employees working for New York State and its political subdivisions under the State's Civil Service Law, the Education Law and disciplinary grievance procedures negotiated pursuant to the Taylor Law...

Witness creditability determinations

Posted on March 31, 2008
Witness creditability determinationsCSEA Local 1000 [Vaziri-Cohen] v Tioga County, App. Div., 3rd Dept 288 A.D.2d 802In an administrative disciplinary action, the hearing officer's determination is frequently based on his or her evaluation of the credibility of witnesses testifying at the disciplinary hearing...

Hearsay evidence in administrative hearings

Posted on March 31, 2008
Hearsay evidence in administrative hearingsDerbyshire v Safir, App. Div., First Dept., 288 A.D.2d 18, Motion for leave to appeal denied, 97 N.Y.2d 611In this appeal, the Appellate Division held that Joseph Derbyshire received a fair hearing and that substantial evidence supported the administrative determination to dismiss him from his position...

Court finds substantial evidence supports disciplinary penalty imposed by employer

Posted on March 28, 2008
Court finds substantial evidence supports disciplinary penalty imposed by employerMatter of Bernaldino Padilla v Kelly, 41 A.D.3d 271, Appellate Division, First Department NYC Police Officer Bernaldino Padilla challenged the Police Commissioner?s determination that Padilla was guilty of refusing to obey a superior officer?s lawful order and his imposing a penalty of disciplinary probation and the forfeiture of 32 days of pay...

Denial of tenure because of union activity

Posted on March 28, 2008
Denial of tenure because of union activityKunjbehari v. Wyandanch Union Free School District, Supreme Court, Justice Costello, [not officially reported] Kunjbehari challenged the District's decision to deny him tenure and sought a court order directing his reinstatement as District Administrator, retroactive to July 1, 2000, together with all back pay and other benefits...

Considering statements in a brief

Posted on March 28, 2008
Considering statements in a briefSisco v Board of Trustees, App. Div., Second Dept., 288 A.D.2d 230 The Board of Trustees of the Village of Havestraw dismissed police officer Keith Sisco after finding him guilty of disciplinary charges alleging misconduct filed against him...

Settlement agreement

Posted on March 28, 2008
Settlement agreementMcLean v Village of Sleepy Hollow, USDC, SDNY, 166 F. Supp. 2d 898 What can an individual do if the terms of a settlement agreement between the employee and the employer fail to provide the benefit or result expected by the employee...

Retaliatory dismissal

Posted on March 28, 2008
Retaliatory dismissalLipphardt v Durango Steakhouse, CA11, 267 F.3d 1183 An employee has a consentual intimate relationship with a co-worker. After discontinuing the relationship the employee tells the employer that he or she is being subjected to harassment by the co-worker and as a result, is terminated...

PERB's 40th Anniversary Conference

Posted on March 27, 2008
The conference commemorates 40 years of the State?s Taylor Law ? the statute governing labor relations between government and the unions that represent public employees. It is designed to bring together state, county, city, town, village, and school district labor and management representatives, students and members of the public with an interest in public sector labor relations...

FMLA Not Violated Based on Employee Misunderstanding of Leave Rights

Posted on March 27, 2008
FMLA Not Violated Based on Employee Misunderstanding of Leave RightsSource: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/ Copyright � 2008. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation...

Removal of public officers

Posted on March 27, 2008
Removal of public officersMatter of Hart v Trumansburg Bd. of Trustees, 41 A.D.3d 1025, Appellate Division, Third Department This case involved an effort to remove officials from their public offices with the Village of Trumansburg pursuant to Public Officers Law Section 36...

Arbitration award modified after arbitrator found to have exceed his authority

Posted on March 27, 2008
Arbitration award modified after arbitrator found to have exceed his authorityMatter of Kocsis v New York State Div. of Parole, 41 A.D.3d 1017, Appellate Division, Third Department A CPLR 7510 petition to confirm an arbitration award was filed by Richard Kocsis, a parole officer...

Disqualifying misconduct bars unemployment insurance award

Posted on March 27, 2008
Disqualifying misconduct bars unemployment insurance awardMatter of Mosher v Commissioner of Labor, 41 A.D.3d 1005, Appellate Division, Third Department Bryan R. Mosher worked as a police officer for the City of Batavia from 2004 until his suspension in October 2005...

Requirements to effect a valid resignation

Posted on March 27, 2008
Requirements to effect a valid resignationPlainedge UFSD v Raymond, Decisions of the Commissioner of Education 14644 The Commissioner's ruling in the Plainedge case points out the critical importance of the written resignation. Early in 2001 Plainedge Union Free School District board member Donald Risucci announced that he was resigning from his position effective June 30, 2001...

Representation in a disciplinary hearing

Posted on March 27, 2008
Representation in a disciplinary hearingSam v Metro-North Commuter Railroad, App. Div., 1st Dept., 287 A.D.2d 378 One of the issues in the Sam v Metro-North Commuter Railroad was Sam's contention that he was denied administrative due process because a union representative rather than an attorney served as his representative at a disciplinary hearing...

Part-time service not credited for the purpose of completing a probationary period

Posted on March 26, 2008
Part-time service not credited for the purpose of completing a probationary periodMatter of Mazzone v Hauppauge Union Free School Dist., 41 A.D.3d 480, Appellate Division, Second Department The Hauppauge Union Free School District terminated Patricia Mazzone, a probationary employee, from her teaching assistant position...

Termination of an employee placed on leave pursuant to Civil Service Law �72

Posted on March 26, 2008
Termination of an employee placed on leave pursuant to Civil Service Law �72Matter of Mair-Headley v County of Westchester, 41 A.D.3d 600, Appellate Division, Second Department Veronica Mair-Headley was absent from work, presumably on Civil Service Law Section 72 leave, due to a non-occupational injury or disease...

State may require union to get nonmember?s approval as to use of agency-shop fee

Posted on March 26, 2008
State may require union to get nonmember?s approval as to use of agency-shop feeDavenport, et al., v Washington Education Association, certiorari to the US Supreme Court, No. 05-1589 A State of Washington statute prohibits labor unions representing state workers from using the agency shop fees of a nonmember for election-related purposes unless the nonmember affirmatively consents to such use of his or her agency-shop fee...

Employee personnel files used to set penalty

Posted on March 26, 2008
Employee personnel files used to set penaltyPettengill v Sissman, NYS Supreme Court, Justice Vincent J. Reilly, Jr., [see 267 A.D.2d 767] The employer decides to introduce an employee's personnel file in the course of a Civil Service Law Section 75 disciplinary proceeding...

Constructive termination

Posted on March 26, 2008
Constructive terminationDuffy v Paper Magic Group, Inc., CA3, 265 F.3d 163 It is not enough to that the individual feel stressed or frustrated by his or her job situation to claim constructive discharge. The individual must show the existence of a pattern of "intolerable conduct" to support such a claim...

Substantial evidence test used to resolve challenges to an administrative decision

Posted on March 25, 2008
Substantial evidence test used to resolve challenges to an administrative decisionMatter of Incorporated Vil. of Lake Success v New York State Pub. Empl. Relations Bd., 41 A.D.3d 599, Appellate Division, Second Department The Public Employment Relations Board [PERB] sustained a determination made by an administrative law judge granting the petition of the Civil Services Employees Association, Inc...

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