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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

Removing information about disciplinary charges from an employee?s records

Posted on January 22, 2008
Removing information about disciplinary charges from an employee?s recordsOlivares v Board of Educ. of the City School Dist. of the City of New York, 39 A.D.3d 230Francisco Olivares, a tenured teacher employed by the New York City Department of Education (DOE), sued in effort to have references to misconduct charges filed against him that had been dismissed expunged from the files of the DOE?s Administrative Trial Unit (ATU)...

Retaining records

Posted on January 22, 2008
Retaining recordsThomas v Mt. Vernon P.D., App. Div., 249 A.D.2d 483, Motion to appeal denied, 94 N.Y.2d 763The Thomas case raises an interesting question: What is the impact of an employer?s failure to preserve records that an employee may believe helpful in a disciplinary hearing?Robin Thomas was found guilty of failing to provide advance notice to the Mount Vernon Police Department that she would be absent from work on May 4, 1995...

Disciplinary hearings held in absentia

Posted on January 22, 2008
Disciplinary hearings held in absentiaMari v Safir, App. Div., 1st Dept., #285, Feb. 19, 2002 291 A.D.2d 298The Mari decision demonstrates that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing...

Suspension without pay

Posted on January 22, 2008
Suspension without payVargo v Safir, App. Div., First Dept., 291 A.D.2d 268Although the Appellate Division did not have any difficulty in affirming New York City Police Commissioner Howard Safir's imposing the penalty of dismissal after finding police officer James Vargo guilty of misconduct, it did find that there was a question as to whether Vargo was entitled to back pay...

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California Workers? Compensation Insurer and School District Immune From Liability For Video Taping Teacher At Her Wedding

Posted on January 22, 2008
California Workers? Compensation Insurer and School District Immune From Liability For Video Taping Teacher At Her WeddingSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/ Reproduced with permission. Copyright � 2008, Mitchell H...

Disciplinary charges allege use

Posted on January 22, 2008
Disciplinary charges allege use of inappropriate languageBernstein v Norwich City School District, App. Div., 282 A.D.2d 70, leave to appeal denied, 96 N.Y.2d 937In May 1998 Richard C. Bernstein, a tenured English teacher in the Norwich High School was charged with conduct unbecoming a teacher, insubordination, neglect of duty and incompetence for using what the district regarded as inappropriate verbiage in the course of teaching a lesson...

Confrontations with a superior

Posted on January 22, 2008
Confrontations with a superiorMuniz v Giuliani, App. Div., First Dept., April 10, 2001The Appellate Division, First Department, sustained the penalty of a suspension without pay for twenty days imposed on New York City police officer Clifford Muniz after Muniz was found guilty of continuing to argue with his desk sergeant after the sergeant had instructed him to leave the precinct house following the morning roll call and the assignment of duties...

Extension of the probationary period

Posted on January 22, 2008
Extension of the probationary periodSmith v NYC Dept. of Correction, App. Div., First Dept., 292 A.D.2d 198In the Smith case the Appellate Division considered a number of aspects of probation upon appointment and the extension of an employee's probationary period...

Police officer to receive full �207-c while simultaneously receiving SSDI benefits

Posted on January 21, 2008
Police officer to receive full �207-c while simultaneously receiving SSDI benefitsMatter of McCaffrey v Town of E. Fishkill, 42 A.D.3d 22General Municipal Law �207-c(1) provides for the continuation salary payments to a police officer injured in the line of duty until such time as the officer is able to return to full duty or, in some instances, limited duty...

Leave for Alcoholism Treatment Does Not Begin at First Telephone Contact with Physician

Posted on January 21, 2008
Leave for Alcoholism Treatment Does Not Begin at First Telephone Contact with PhysicianSource: 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...

Recent decisions by U.S. Circuit Courts of Appeal

Posted on January 21, 2008
Recent decisions by U.S. Circuit Courts of AppealSource: Findlaw ? A Thomson Company, Copyright �2008 by Findlaw, redistributed with permission. For subscription information go to: http://newsletters.findlaw.com/nl/Dissolution of a municipal boardU.S...

Negotiating for health insurance benefits in retirement

Posted on January 21, 2008
Negotiating for health insurance benefits in retirementMcDonald PBA v City of Geneva, Ct. of Appeals, 92 N.Y.2d 326The Court of Appeals, in a ruling that could significantly affect a retiree?s participation in a municipality?s health insurance program, concluded that ?there is no legal impediment to the municipality?s unilateral alteration of the past practice? regarding its providing health insurance benefits to its retirees and their dependents where there was neither a Taylor Law agreement nor some other contract or provision of law granting retirees a vested right to such a benefit...

Terms of ?last chance? agreement included a waiver of the employee?s right to arbitrate or litigate his subsequent termination

Posted on January 18, 2008
Terms of ?last chance? agreement included a waiver of the employee?s right to arbitrate or litigate his subsequent termination.Matter of James Schmitt v New York State Dept. of Correctional Services, 2008 NY Slip Op 00317, Decided on January 17, 2008, Appellate Division, Third DepartmentJames Schmitt, a correction officer at the Washington Correctional Facility in Washington County, served disciplinary charges alleging ?excessive absenteeism? The charges included specifications of 17 occasions when he was allegedly absent without leave? [AWOL]...

Recent decisions issued by the New York Office of Administrative Trials and Hearings

Posted on January 18, 2008
Recent decisions issued by the New York Office of Administrative Trials and HearingsSource: OATH December 2007 determinationsFiling a false reportIn a disciplinary proceeding, a correction officer was found guilty of erroneously discharging an inmate, submitting a false report, and giving false testimony about the incident...

Disciplinary arbitration findings affect unemployment insurance claims

Posted on January 18, 2008
Disciplinary arbitration findings affect unemployment insurance claimsEdie v NYC Transit Authority, App. Div., 253 A.D.2d 952As Santiago J. Edie learned, if an employee is found guilty of misconduct in a disciplinary arbitration, he or she will be disqualified for unemployment insurance benefits on the basis of that finding under the doctrine of collateral estoppel -- the decision in a prior action is conclusive if the same issue is subsequently presented to a second tribunal...

Conducting a private business while ?off-duty?

Posted on January 18, 2008
Conducting a private business while ?off-duty?Cook v Von Essen, App. Div., First Dept., 283 A.D.2d 214Sometimes a public employee will operate a private business "on the side." Many public employers require the individual to obtain the prior approval of his or her appointing authority in order to conduct such activities...

Applying the terms of a disciplinary settlement agreement

Posted on January 18, 2008
Applying the terms of a disciplinary settlement agreementPerretti v NYC Transit Auth., App. Div., 3rd Dept., 283 A.D.2d 737The New York City Transit Authority challenged a decision by the Unemployment Insurance Appeals Board granting one of its employees, Frank P...

Placement on Section 72 leave

Posted on January 18, 2008
Placement on Section 72 leavePetix v NYS Off. of Mental Health, App. Div., 4th Dept., 291 A.D.2d 846The Petix decision, a case involving the application of Section 72.5 of the Civil Service Law [CSL], provides an opportunity to explore this and a number of other facets of Section 72, Leave for Ordinary Disability...

Failure to extend a contract of employment

Posted on January 17, 2008
Voss v Rockland County Community College, 38 A.D.3d 880When Thomas Voss? contract as Acting President of the Rockland Community College was not extended beyond its fixed date of expiration, he sued to ?recover damages for breach of contract.? Supreme Court dismissed Voss? complaint and he appealed...

Payment for unused vacation credit upon separation from employment

Posted on January 17, 2008
Baksh v Town/Village of Harrison, 38 A.D.3d 808Mohamed R. Baksh sued the Town and Village of Harrison [Harrison] to recover damages for an alleged ?breach of contract? after the Town rejected his demand for payment of the monetary value of his accrued ?compensatory time? following his termination...

Termination of a probationer without a pre-termination hearing

Posted on January 17, 2008
Johnson v City of New York, App. Div., First Dept., 281 A.D.2d 322Elaine Johnson, a probationary employee, challenged her termination from her position as a Caseworker with the New York City Administration for Children?s Services [ACS].According to the decision, Johnson suffered a job-related injury while she was serving as a provisional Caseworker...

Tainted testimony basis for overturning disciplinary action

Posted on January 17, 2008
Buric v Safir, App. Div., 285 A.D.2d 255John Buric, a New York City police officer, found guilty of administrative disciplinary charges of assault and lying, was dismissed from his position.The Appellate Division vacated this determination. Noting that ?the threshold required to annul the Commissioner?s determination is a very high one,? the Court said that the Commissioner?s findings in this case clearly demonstrate, on this record, the lack of any rational basis...

Negotiating disciplinary procedures

Posted on January 17, 2008
Mt. Vernon v PERB, App. Div., 3rd Dept., 289 A.D.2d 674In considering the appeal of the City of Mt. Vernon, the Appellate Division ruled that under certain circumstances negotiating a contract disciplinary procedure is not a mandatory subject of collective bargaining under the Taylor Law...

Probationary employee terminated after making false statement concerning a pre-employment incident

Posted on January 16, 2008
Probationary employee terminated after making false statement concerning a pre-employment incidentMatter of Duncan v Kelly, 2008 NY Slip Op 00181, Decided on January 15, 2008, Court of AppealsNew York City Police Department's Internal Affairs Bureau (IAB) conducted an interview probationary police officer Myron Duncan about a credit card incident that implicated his cousin in criminal activity that occurred prior to his appointment...

Appellate Division lacked ?discretionary authority? to vacate the disciplinary penalty imposed by the appointing authority

Posted on January 16, 2008
Appellate Division lacked ?discretionary authority? to vacate the disciplinary penalty imposed by the appointing authorityMatter of David Torrance v Joseph A. Stout, 2008 NY Slip Op 00180, Decided on January 15, 2008, Court of AppealsDavid Torrance was employed a Park Foreman by the Westchester County Department of Parks, Recreation and Conservation...

Timely reporting of ?the accident? critical to claiming line of duty disability benefits

Posted on January 16, 2008
Timely reporting of ?the accident? critical to claiming line of duty disability benefitsMatter of Sorano v Hevesi, 38 A.D.3d 1137Debbie Sorano, a police officer for the City of Yonkers, filed an application for performance of duty disability retirement benefits based on an incident that occurred on January 18, 2001...

Non-party?s ability to challenge an arbitration award is limited

Posted on January 16, 2008
Non-party?s ability to challenge an arbitration award is limitedMatter of Patrolmen?s Benevolent Assn. of the City of New York, Inc. v District Council 37, AFSCME, AFL-CIO, 38 A.D.3d 449On January 17, 2006, Supreme Court confirmed an arbitrator?s award resolving a dispute between District Council 37 [DC-37] and the City of New York...

Confrontational behavior

Posted on January 16, 2008
Confrontational behaviorHadjitheodoro v Comptroller of Public Accounts, 252 A.D.2d 709Disrespectful or confrontational behavior that persists despite repeated warnings may constitute disqualifying misconduct for the purposes of claiming unemployment insurance benefits...

Quid pro quo not required to validate disciplinary settlement agreement

Posted on January 15, 2008
Quid pro quo not required to validate disciplinary settlement agreementMatter of Newman v Fire Dept. of the City of New York, 2008 NY Slip Op 00172, Decided on January 10, 2008, Appellate Division, First DepartmentIt appears that Joseph P. Newman settled pending disciplinary charges filed against him by entering into a ?settlement agreement? with the New York City Fire Department...

NLRB decision may be used as a primer on employee surveillance

Posted on January 15, 2008
NLRB decision may be used as a primer on employee surveillanceSource: 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...

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