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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

Local Union Has No Right To Commence Arbitration

Posted on March 25, 2008
Local Union Has No Right To Commence ArbitrationSource: 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...

Court of Claims lacks jurisdiction to hear workers? compensation benefit appeal

Posted on March 25, 2008
Court of Claims lacks jurisdiction to hear workers? compensation benefit appealMcGuinness v New York State Workers? Compensation Board, 41 A.D.3d 557, Appellate Division, Second Department Hugh G. McGuinness filed a petition with the Court of Claims seeking its review of various determinations made by the New York State Workers? Compensation Board and an order compelling the Board to direct an insurance company to resume payment of benefits to McGuinness for a disability allegedly involving an occupational disease...

Determining the ?prevailing rate of wages? for positions in a negotiating unit

Posted on March 25, 2008
Determining the ?prevailing rate of wages? for positions in a negotiating unitMatter of James F. Hanley v William C. Thompson, 41 A.D.3d 207, Appellate Division, First Department New York City Comptroller William C. Thompson, Jr. determined that the ?prevailing wage rate? for the title of Supervisor Highway Repairer (SHR) should be the same as the ?prevailing wage? paid foremen who perform comparable duties in the private sector...

Determination of negotiating exclusion is a proper subject for local legislation

Posted on March 25, 2008
Determination of negotiating exclusion is a proper subject for local legislationMayor of the City of New York v Council of the City of New York, 9 N.Y.3d 23, Court of Appeals In 2001, the New York City Council adopted two local laws, Local Laws 18 and 19, giving ?uniformed officer? status to individuals employed by the New York City Fire Department as fire alarm dispatchers and emergency medical technicians (EMTs)...

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Retirement System rebuts presumption that member?s disability is work related

Posted on March 25, 2008
Retirement System rebuts presumption that member?s disability is work relatedMatter of James W. Bryant v Hevesi, 41 A.D.3d 930 Appellate Division, Third Department Retirement and Social Security Law Section 507-b creates a rebuttable presumption that a law enforcement officer disabled as the result of a heart attack was so disabled as the result of his or her performance of law enforcement duties...

Workers? Compensation denied for slip and fall injury suffered on the way to work

Posted on March 25, 2008
Workers? Compensation denied for slip and fall injury suffered on the way to workMatter of Matthew Duffy v Taconic Correctional Facility, 41 A.D.3d 923, Appellate Division, Third Department This case concerns an appeal from a decision of the Workers? Compensation Board, filed December 27, 2005, that held that Matthew Duffy had sustained an accidental injury arising out of and in the course of his employment...

Appealing a Section 75 settlement agreement

Posted on March 25, 2008
Appealing a Section 75 settlement agreementJohnson v Triborough Bridge and Tunnel Auth., NYS Court of Appeals, 97 N.Y.2d 627 Edward P. Johnson, an employee of the Triborough Bridge and Tunnel Authority [TBTA], was involved in an after-hours altercation during which his service revolver discharged...

Motion to vacate arbitration award because of alleged bias of the arbitrator rejected

Posted on March 24, 2008
Motion to vacate arbitration award because of alleged bias of the arbitrator rejectedGregory Zrake v New York City Dept. of Education, 41 A.D.3d 118, Appellate Division, First Department [Motion for leave to appeal denied, 9 N.Y.3d 1001]Gregory Zrake, public school teacher, was found guilty of charges of being unfit following a disciplinary hearing conducted pursuant to Education Law Section 3020-a...

Determining an appropriate penalty for misconduct

Posted on March 24, 2008
Determining an appropriate penalty for misconductMatter of Darryl Tripplin and the NYC Department of Sanitation, OATH Index No. 1016/07 Darryl Tripplin, a computer associate employed by the New York City Department of Sanitation, was served with disciplinary charges alleging five incidents of ignoring, disobeying, or being disrespectful to his supervisor...

Arbitration award vacated pursuant to the ?public policy exception?

Posted on March 24, 2008
Arbitration award vacated pursuant to the ?public policy exception?Matter of City Univ. of N. Y. v Professional Staff Congress, 41 A.D.3d 138, Appellate Division, First Department A City College professor filed a complaint with the College?s Affirmative Action Officer [AAO] after being denied tenure...

Employee terminated after being AWOL for six months

Posted on March 24, 2008
Employee terminated after being AWOL for six monthsMatter of Berry and the NYC Commission on Human Rights, OATH Index No. 1537/07 James Berry, Human Rights Specialist with the New York City Commission on Human Rights, was charged with being absent without authority for six months...

Subpoena duces tecum to be quashed unless former employee granted immunity

Posted on March 24, 2008
Subpoena duces tecum to be quashed unless former employee granted immunity Matter of Bruce Brasky v City of New York Dept. of Investigation, 40 A.D.3d 531, Appellate Division, First Department Bruce Brasky worked as an attorney for the New York City Department of Finance (DOF) Promoted to Director of DOF?s Real Estate unit, Brasky subsequently became the Director of the Real Estate Tax and Exemptions Policy unit within DOF?s Office of Legal Affairs...

Failure to file an appeal may not always support a claim of malpractice

Posted on March 24, 2008
Failure to file an appeal may not always support a claim of malpracticePodszus v Sussman, App. Div., 2nd Dept., 287 A.D.2d 607Mount Vernon police officer William Podszus was found guilty of charges of insubordination and malicious gossip. The penalty imposed: forfeiture and withholding of 10 days' pay [Podszus v City of Mount Vernon Department of Public Safety, 246 AD2d 548...

Police disciplinary procedures may not be subject to Taylor Law negotiations

Posted on March 24, 2008
Police disciplinary procedures may not be subject to Taylor Law negotiationsIn Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 13 AD3d 879, affirmed, 6 NY3d 563 and Matter of Town of Orangetown v Orangetown Policemen's Benevolent Assn...

Employee terminated after obtaining Red Cross assistance under ?false pretenses?

Posted on March 21, 2008
Employee terminated after obtaining Red Cross assistance under ?false pretenses?Matter of Christopher Mapp v Burnham, 8 N.Y.3d 999, Court of AppealsChristopher Mapp was employed as a Senior Product Consultant in the Technology Services Department of the Port Authority of New York and New Jersey...

Filing a ?notice of claim? critical to challenging a probationary teacher?s dismissal

Posted on March 21, 2008
Filing a ?notice of claim? critical to challenging a probationary teacher?s dismissalMatter of Wendy Sue Silvernail v Enlarged City School Dist. of Middletown, 40 A.D.3d 1004, Appellate Division, Second Department Wendy Sue Silvernail filed an Article 78 petition seeking Supreme Court review of the determination of the Superintendent of the Enlarged City School District of Middletown terminating her employment as a probationary teacher...

Testing for illegal drugs

Posted on March 21, 2008
Testing for illegal drugsKerns v Sewage Authority, CA3 263 F.3d 61 In the Kerns case, one of the elements considered by the court was the impact of an individual's agreement to submit to testing for illegal drugs as a condition of his or her employment by a public employer...

Serving all necessary parties with a copy of an appeal critical

Posted on March 21, 2008
Serving all necessary parties with a copy of an appeal criticalCommissioner's Decision 14,608 Michelle Knapp filed an appeal with the Commissioner of Education seeking to have the Commissioner remove Freeport Union Free School District Board Member Sunday F...

Selected items from Jackson Lewis, LLP

Posted on March 21, 2008
Selected items from Jackson Lewis, LLP Source: Jackson Lewis LLP. Reproduced with permission. Copyright © 2008, Jackson Lewis. Originally published by Jackson Lewis, LLP, at www.jacksonlewis.com. All rights reserved. Supreme Court Upholds Arbitration as Proper Forum for Challenges to Validity of Agreements with Arbitration Clauses The United States Supreme Court has held that in cases arising under the Federal Arbitration Act, where a party challenges the enforceability of a contract that contains an arbitration clause, the arbitrator designated under the agreement must determine the validity of the agreement...

Certification of the eligible list and the rule of three [Civil Service Law Section 61.1]

Posted on March 20, 2008
Certification of the eligible list and the rule of three [Civil Service Law Section 61.1]Response to a question submitted by a readerFrom time to time a reader will submit a question that may be of general interest to readers of New York Public Personnel Law...

Tests used by courts to determine a prima facie case of unlawful discrimination

Posted on March 20, 2008
Tests used by courts to determine a prima facie case of unlawful discriminationDaljit Singh v State of New York Off. of Real Prop. Servs., 40 A.D.3d 1354, Appellate Division, Third Department The Singh case sets out the tests used by courts in considering allegations of unlawful discrimination in employment...

Appointing authority?s rejection of the hearing officer?s recommendation rejected

Posted on March 20, 2008
Appointing authority?s rejection of the hearing officer?s recommendation rejectedMatter of Christine Sequist v County of Putnam, 40 A.D.3d 1003, Appellate Division, Second Department Christine Sequist, a bus driver, was found guilty of disciplinary charges...

Repeated disciplinary action against supervisor considered in upholding dismissal

Posted on March 20, 2008
Repeated disciplinary action against supervisor considered in upholding dismissalMatter of William Brown v New York City Housing Authority, 40 A.D.3d 511, Appellate Division, First Department The Appellate Division unanimously confirmed the New York City Housing Authority?s terminating William Brown, a Supervisor of Caretakers, from his position...

Transfer of work to another negotiating unit

Posted on March 19, 2008
Transfer of work to another negotiating unitMatter of the United Public Service Employees Union and Seaford UFSD, U26471, ALJ Maier Administrative Law Judge Maier dismissed a charge filed by the Union that alleged a violation of the Act. The Union complained that the School District had transferred work being performed by employees in its negotiating unit to employees in ?the intervener, Civil Service Employees Association? unit...

Operating a ?coffee club? by the union on employer?s property

Posted on March 18, 2008
Operating a ?coffee club? by the union on employer?s propertyMatter of Pittsford Central School Bus Drivers and Attendants? Association and Pittsford CSD, U26355, ALJ Doerr The Association?s charge that the District violated Section 209a.1(d) of the Act when it replaced the Association sponsored profit-making ?coffee club,? which operated out of the ?break room,? with vending machines, was dismissed...

Involuntary resignation

Posted on March 18, 2008
Involuntary resignationShoaf v Dept. of Agriculture, FedCir, 00-3148, In the Shoaf case the U.S. Circuit Court of Appeals, Federal Circuit, set out its guidelines for determining whether a federal employee's resignation or retirement was voluntary or whether it should be deemed to be a "constructive discharge...

Failure to notify union of reclassification plans

Posted on March 18, 2008
Failure to notify union of reclassification plansCSEA v Dutchess County, App. Div., 2nd Dept., 295 A.D.2d 346Reclassification of positions: If the employer fails to advise incumbents of the positions that it plans to reclassify of its plan, such reclassifications are neither final nor binding and any duties required to be performed under color of the reclassification of such positions constitutes out-of-title work...

Protected speech

Posted on March 18, 2008
Protected speechMcKinley v Kaplan, CA11, 262 F.3d 1146 The general rule is that a public employee cannot be disciplined simply for exercising his or her constitutional right to free speech concerning matters of public interest. Where the employee speaks out on matters of public concern, the government bears the burden of justifying any adverse employment action it might take against the individual...

Requests for reconsideration of a decision fail to toll the statute of limitations

Posted on March 17, 2008
Requests for reconsideration of a decision fail to toll the statute of limitationsPrasanna Goonewardena v Hunter College, 2007 NY Slip Op 04356, Appellate Division, First Dept., Decided on May 22, 2007 An Article 78 proceeding challenging an administrative decision must be commenced within four months after the determination to be reviewed becomes final and binding...

Union refused to process the unit member?s grievance

Posted on March 17, 2008
Union refused to process the unit member?s grievanceCharles Roberts and NYS-OMRDD and CSEA, U26409, ALJ Fitzgerald Charles Roberts alleged that CSEA violated its duty of fair representation by refusing to process his grievances, and that OMRDD had refused to process his grievances in violation of the Act...

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