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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

Immunity of witnesses

Posted on March 17, 2008
Immunity of witnessesSource: 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...

Duty of fair representation

Posted on March 17, 2008
Duty of fair representationMatter of Stacy Bray and Amalgamated Transit Union Local 1056, U26175, ALJ Cacavas ALJ Cacavas dismissed Stacy Bray?s charge alleging her union breach its duty of fair representation because it was based merely upon her ?belief? that the Union could have handled her case better and because the Union failed to provide her with an opportunity to review its post-hearing brief before its submission...

Employee misconduct

Posted on March 17, 2008
Employee misconductKampel v Westchester County Health Care, Corp., App. Div., 2nd Dept., 286 A.D.2d 390 Robert Kampel, was served with disciplinary charges alleging excessive absences, failure to comply with the established call-in procedure to report his absences, and two incidents in which he pushed co-workers...

Withdrawing a resignation

Posted on March 17, 2008
Withdrawing a resignationMartinez v State Univ. of New York, App. Div., 3rd Dept. 294 A.D.2d 650; 13 A.D.3d 749 Probationer Odilon Martinez was advised by his supervisors that he was to be terminated from his position as a Laborer, Grade 6 because his performance during his probationary period had been unsatisfactory...

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Determining the timeliness of a grievance did not exceed the arbitrator?s authority

Posted on March 14, 2008
Determining the timeliness of a grievance did not exceed the arbitrator?s authorityFashion Inst. of Tech. v Union of Coll. Employees of Fashion Inst. of Tech., Local 3457, Am. Fedn. of Teachers, 2007 NY Slip Op 04355, Decided on May 22, 2007, Appellate Division, First Department The Appellate Division affirmed a decision by Supreme Court, New York County, Judge Alice Schlesinger denying the petition filed by the Fashion Institute of Technology [FIT] seeking to vacate an arbitration award directing the school to reconsider its decision ?to discontinue [a] teacher?s tenure...

Improper practice ? repudiation of an agreement

Posted on March 14, 2008
Improper practice ? repudiation of an agreementMatter CSEA and the Incorporated Village of Hempstead, U26139; U25994, U26192; U26193; and U25995, ALJ Maier The ALJ found that the Village committed an improper practice in violation of the Taylor Law when it repudiated an agreement entered into by a former Mayor...

Dismissal of a provisional employee

Posted on March 14, 2008
Dismissal of a provisional employeeMiggins v City of New York, App. Div., 1st Dept., 286 A.D.2d 258 Cheryl Miggins was appointed as a provisional caseworker by the New York City Administration for Children's Services in June 1997. Although her performance evaluation for 1997 was "good," in January 1999, presumably reflecting the quality of her services during 1998, Miggins received a "conditional" performance evaluation...

Dismissal for pre-employment misconduct

Posted on March 14, 2008
Dismissal for pre-employment misconductUmlauf v Safir, App. Div., 1st Dept., 286 A.D.2d 267 Clearly an employee may be subjected to disciplinary action for his or her off-duty misconduct that adversely affects his or her employer. If the employee is found guilty, any one of a number of penalties, including termination, may be imposed...

Designation of an employee as ?confidential?

Posted on March 13, 2008
Designation of an employee as ?confidential?Matter of Patchogue-Medford CSD and CSEA, E2417, ALJ Cacavas Where a senior accountant has a confidential relationship to a managerial employee in the latter?s performance of managerial responsibilities, a confidential designation was warranted...

Employee fired for filing a fraudulent claim with his private insurance company

Posted on March 13, 2008
Employee fired for filing a fraudulent claim with his private insurance companyMatter of Louis Maldarelli v Doherty, 2007 NY Slip Op 04407, decided on May 24, 2007, Appellate Division, First DepartmentLouis Maldarelli, an employee of the New York City Department of Sanitation [DOS], was convicted of insurance fraud in the third degree...

Discipline for just cause

Posted on March 13, 2008
Discipline for just causeBoston Med. Center v Local 285, CA1, 00-2322, 260 F.3d 16 Many collective bargaining agreements provide that an employee may be disciplined "for just cause." However, few contracts define "just cause." In the Boston Medical Center [BMC] case, the U...

Termination during probation

Posted on March 13, 2008
Termination during probationStretz v Bloom, App. Div., 2nd Dept., 286 A.D.2d 337 Newburgh probationary police officer Kenneth Stretz was terminated from his position. The Appellate Division, Second Department, rejected his appeal from a lower court's dismissal of his petition seeking reinstatement...

Whistle blowing pre-disclosure notice

Posted on March 13, 2008
Whistle blowing pre-disclosure noticeBrohman v NY Convention Center Operating Corp., App. Div., 1st Dept., 293 A.D.2d 299 The Brohman case discusses the issue of notice to the employer in cases involving alleged retaliation in violation of the Whistle Blowers Law, Section 75-b of the Civil Service Law...

Fragmentation of collective bargaining units

Posted on March 13, 2008
Fragmentation of collective bargaining unitsMatter of NYS Parole Officers Benevolent Association and PEF, C5441, ALJ Quinn An ALJ ruled that State parole officers are not sufficiently engaged in criminal law enforcement to warrant their fragmentation from an otherwise civilian negotiating unit...

Alternatives to Section 75 disciplinary procedures

Posted on March 12, 2008
Alternatives to Section 75 disciplinary proceduresMatter of Oxford Employee Support Personnel Association v Oxford Academy & Central School District, 2007 NY Slip Op 04210, Decided on May 17, 2007, Appellate Division, Third DepartmentCivil Service Law Section 76...

PERB lacks jurisdiction to adjudicate provisions in Taylor Law agreement

Posted on March 12, 2008
PERB lacks jurisdiction to adjudicate provisions in Taylor Law agreementMatter of Administrator?s Association of Erie Community College and County of Erie, U27283, Director KleinThe Director dismissed a charge alleging that the County of Erie and the Erie County Community College violated the Act when it declined to offer a retirement incentive...

Last known address

Posted on March 12, 2008
Last known addressNYS Nat'l Org. for Women v Pataki, CA2, 261 F.3d 156Courts sometimes provide insights into administrative due process procedures in the course of considering a case that essentially focuses on a completely different issue. In the National Organization for Women [NOW] case, which concerned due process in the adjudication of alleged violations of an individual's civil rights, one of the ministerial issues considered by the Circuit Court of Appeals, Second Circuit, was an administrative agency's duty to "track down" an individual...

Using the employer's e-mail

Posted on March 12, 2008
Using the employer's e-mailBenson v Cuevas, App. Div., 3rd Dept., 293 A.D.2d 927Roger E. Benson, President of the New York State Public Employees Federation [PEF], appealed New York State Public Employment Relations Board's [PERB] determination that the New York State Department of Education did not commit an improper employer practice when it terminated an employee's access to the Department's e-mail system...

Termination during the probationary period

Posted on March 11, 2008
Termination during the probationary periodMatter of Sztabnik v City of New York, App Div, 2d Dept 2006 NYSlipOp 05375 The Appellate Division, Second Department affirmed the termination of Donald Sztabnik as Chief Administrative Superintendent. Sztabnik had been reinstated to his prior title of Administrative Superintendent prior to the end of his probationary period...

Postponing a disciplinary hearing ? suspension without pay

Posted on March 11, 2008
Postponing a disciplinary hearing ? suspension without payMatter of Skrypek v Bennett, App Div, 3d Dept 2006 NYSlipOp 05257State Trooper Randall R. Skrypek challenging his suspension without pay pending disciplinary action following an off-duty incident in which he misrepresented to 911 operators and police investigators that he had been assaulted and robbed...

Insubordination

Posted on March 11, 2008
InsubordinationHoey v PERB, App. Div., 284 A.D.2d 633 Teacher aides employed by the Cayuga-Onondaga Board of Cooperative Educational Services [BOCES] were given specific instructions to report any concerns about classroom matters -- they were to immediately bring them to the attention of the supervisor of special education or the school principal...

Suppressing evidence in a disciplinary action

Posted on March 11, 2008
Suppressing evidence in a disciplinary actionSection 75 hearing officer's findings, received May 8, 2002 As announced by the U.S. Supreme Court in cases such as Weeks v United States, 232 US 383 and Mapp v Ohio, 367 US 643, evidence obtained by police officers found to have been the fruit of an unlawful search cannot be used in a criminal proceeding...

Involuntary transfer

Posted on March 11, 2008
Involuntary transferJones v Fitzgerald, CA8, Index 01-1976 After resigning from her clerical support position with the Story County Sheriff's Office, Vicki L. Jones sued the county, the county sheriff, Paul Fitzgerald and the former chief deputy sheriff, E...

Disciplinary settlement agreement may preserve one or more allegations for subsequent action

Posted on March 10, 2008
Disciplinary settlement agreement may preserve one or more allegations for subsequent actionMatter of Shuler v State of New York, 2008 NY Slip Op 01826, Appellate Division, First Department, Decided on February 28, 2008 Jeffrey Shuler and the Downstate Medical Center settled a number of disciplinary charges brought against him...

Filing a timely Article 78

Posted on March 10, 2008
Filing a timely Article 78Budihas v Board of Education, App. Div., 2nd Dept., 285 A.D.2d 549Bonilla v Board of Education, App. Div., 2nd Dept., 285 A.D.2d 548 When does the four-month Statute of Limitation to file a timely Article 78 petition begin to run? This critical issue involving the State's adjective law is explored in the Budihas and Bonilla cases...

Employee?s termination for threatening supervisor sustained by Appellate Division

Posted on March 10, 2008
Employee?s termination for threatening supervisor sustained by Appellate DivisionClancy v New York City Housing Authority, 2007 NY Slip Op 04162, Decided on May 15, 2007, Appellate Division, First DepartmentThe New York City Housing Authority dismissing Marc Clancy from his position as a caretaker after he was found guilty of threatening and using abusive language toward a supervisor...

Impartiality of the hearing officer

Posted on March 10, 2008
Impartiality of the hearing officerBieber v Department of the Army, CA, Fed. Cir., Index 01-3058 The Bieber case involved an issue sometimes encountered in a challenge to a disciplinary determination: a complaint that the conduct of the hearing officer prevented the individual from receiving a fair hearing and violated the individual's right to administrative due process...

Federal Court Gets Federal Sector FMLA Coverage Wrong Again

Posted on March 08, 2008
Federal Court Gets Federal Sector FMLA Coverage Wrong Again Source: 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...

Defendant in a criminal action cannot prevent a related administrative disciplinary action from going forward

Posted on March 07, 2008
Defendant in a criminal action cannot prevent a related administrative disciplinary action from going forwardMatter of Marilyn Chaplin v New York City Dept. of Education, 2008 NY Slip Op 01012, Appellate Division, First Department, Decided on February 5, 2008The New York City School District terminated Marilyn Chaplin from her position New York City schoolteacher position based on an arbitration award that found her guilty of misconduct that ?compromised her ability to function in her job and constituted unacceptable behavior...

Failure to appeal

Posted on March 07, 2008
Failure to appealFontaine v Comm. of Labor, App. Div., Third Dept., 283 A.D.2d 825Thomas v Stone, App. Div., Third Dept 284 A.D.2d 627 The Fontaine Case The Fontaine case demonstrates that the failure to file a timely objection to an administrative determination bars judicial review of the decision...

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