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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

Term appointments of employees in the Classified Service

Posted on November 04, 2010
Term appointments of employees in the Classified ServiceWheeler v Washington Co., 259 AD2d 902Term appointments are rare in the classified service. The Wheeler case involves such a type of appointment and considers the rights of an incumbent upon the expiration of his or her term of office...

Termination of employment pursuant to Civil Service Law Section 73

Posted on November 04, 2010
Termination of employment pursuant to Civil Service Law Section 73Fallon v Triboro. Bridge & Tunnel Auth., 259 AD2d 377An individual who is terminated pursuant to Section 71 or Section 73 of the Civil Service Law because of his or her absence caused by a disability may decide to sue the employer, claiming the termination was unlawful...

Maryland Police may not claim a "privacy sheild" when making a ?traffic stop?

Posted on November 03, 2010
Maryland Police may not claim a "privacy sheild" when making a "traffic stop?Source: AELE Law Enforcement Legal Center, http://www.aele.org/, Reproduced with permission. Copyright © 2010 AELE?A motorist stopped by two Maryland state troopers recorded his interaction with the officers without informing them he was doing so...

Unemployment Insurance claims

Posted on November 03, 2010
Unemployment Insurance claimsPrusch v Shenendehowa CSD, 259 AD2d 877, Motion for leave to appeal denied, 93 NY2d 816As a general rule, criticism of an employee?s job performance by a supervisor or receipt of a negative performance evaluation does not necessarily constitute good cause for leaving employment for the purpose of establishing eligibility for unemployment insurance benefits...

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Initiating disciplinary action based on anonymous allegations of wrongdoing

Posted on November 03, 2010
Initiating disciplinary action based on anonymous allegations of wrongdoingWilson v City of White Plains, 259 AD2d 756, reversed, 95 NY2d 783Anonymous communications that allege improper conduct by an employee place the appointing authority on the horns of a dilemma...

Extending an eligible list

Posted on November 03, 2010
Extending an eligible listDoyle v NYC Dept. of Citywide Administrative Services, 261 A.D.2d 110Thomas Doyle brought an Article 78 action to compel the New York City Department of Citywide Administrative Services to extend a civil service eligible list beyond its ?maximum life...

Transfer of employees

Posted on November 03, 2010
Transfer of employeesAllah v NYC Health and Hosp. Corp., 259 AD2d 409, Appeal dismissed, 93 NY2d 999 Section 45 of the Civil Service Law provides for the continuation of employment for eligible employees of a private entity when a public agency assumes the functions formerly performed by the private organization...

Accidental disability retirement

Posted on November 03, 2010
Accidental disability retirementTuper v McCall, App. Div., 259 AD2d 941Establishing eligibility for accidental disability retirement is not easy in New York State, as the Tuper case illustrates. State corrections officer Toni Tuper slipped on a wet floor while supervising a prison inmate mopping...

Displacement and layoff

Posted on November 02, 2010
Displacement and layoffYonkers Muni. Housing Auth. v Dugan, 261 AD2d 406Typically when a position is abolished and this results in the layoff of a permanent employee, his or her name is placed on a preferred list in accordance with the provisions of Civil Service Law Section 80 [permanent employees in the competitive class] or Section 80-a [permanent employees in the noncompetitive class]...

Dual employment

Posted on November 02, 2010
Dual employmentHolbrook v Rockland Co, 260 AD2d 437Most public officers and employees serve in one position at a time. Sometimes, however, an individual may be employed by two different jurisdictions simultaneously. Such dual employments generally require the knowledge and approval of the appointing authorities involved...

Duty of fair representation

Posted on November 02, 2010
Duty of fair representationMatter of Beattie, 32 PERB 3023Representation by an attorney provided by a union is an important right of membership in an employee organization. The Matter of Beattie decision makes the point that an employee organization?s duty to represent a member ?in any further pursuit? of his or her claims against an employer, or in defense against any adverse action taken by the employer, ceases if the individual employs a private attorney to handle the matter...

Criminal conviction may bar teaching if the applicant cannot satisfy the relevant criteria set out in Section 753 of the Correction Law

Posted on November 02, 2010
Criminal conviction may bar teaching if the applicant cannot satisfy the relvant criteria set out in Section 753 of the Correction LawArrocha v NYC Bd. of Education, 93 NY2d 361Sometimes an individual who has been convicted of a crime applies for a license to teach or for employment as a teacher...

Substantial evidence requires proof "so substantial that from it an inference of the existence of the fact found may be drawn reasonably?

Posted on November 01, 2010
Substantial evidence requires proof "so substantial that from it an inference of the existence of the fact found may be drawn reasonably?Matter of Lory v County of Wash., 2010 NY Slip Op 07657, Decided on October 28, 2010, Appellate Division, Third DepartmentWashington County Sheriff's Department charged Chad R...

Public officers and employees may engage in outside employment, aka ?moonlighting,? subject to their satisfying certain restrictions and limitations

Posted on November 01, 2010
Public officers and employees may engage in outside employment, aka ?moonlighting,? subject to their satisfying certain restrictions and limitationsKastoff v NYS Dept. of Social Services, 195 A.D.2d 808"Moonlighting" has been a common practice in both the public and private sectors...

False claim - work-related injury

Posted on November 01, 2010
False claim - work-related injuryEgan v Von Essen, 260 AD2d 479New York City firefighter Richard M. Egan claimed he injured himself by falling out of a chair while at work. On May 10, 1994, Egan filed an application for a service-incurred disability pension with the Fire Department Pension Fund based on back injuries he allegedly suffered by the fall...

Free speech

Posted on November 01, 2010
Free speechCouncil 82 [ex rel Kuhnel], v State of New York, App. Div., 255 AD2d 54, Affirmed, 94 NY2d 321State Correction Department rules do not trump a correction officer?s First Amendment right to fly a Nazi flag at his home said the Appellate Division in a decision that affirmed an arbitrator?s ruling in the Kuhnel case...

Testing for drugs

Posted on November 01, 2010
Testing for drugsRoy v City of New York, 685 NY2d 668How much evidence is sufficient to require an employee to take a drug test? And if the employee refuses to take the drug test, is that grounds for dismissal?The Appellate Division addressed those questions in the Roy case...

Whether a retiree may file a grievance alleging a ?violation of the collective bargaining agreement? is for the arbitrator to decide

Posted on October 29, 2010
Whether a retiree may file a grievance alleging a ?violation of the collective bargaining agreement? is for the arbitrator to decideMatter of Peters v Union-Endicott Cent. School Dist., 2010 NY Slip Op 07647, decided on October 28, 2010, Appellate Division, Third Department[see, also, Matter of Union-Endicott Cent...

Grieving alleged out-of-title work assignments

Posted on October 29, 2010
Grieving alleged out-of-title work assignmentsBailey v GOER, 259 AD2d 940Sometimes a Taylor Law contract will include a provision barring unit members from being assigned to perform ?out-of-title? work. Such a provision was included in a collective bargaining agreement between the State of New York and a negotiating unit represented by the Civil Service Employees Association, Local 1000 [CSEA]...

Independent medical examinations

Posted on October 29, 2010
Independent medical examinationsOlivier v Rockland Co., 260 AD2d 482The Olivier case addresses the question of an employer?s right to require an ?independent medical examination? as a condition precedent to its making a determination concerning an employee?s application for disability benefits pursuant to Section 207-c of the General Municipal Law...

Jarema credit and eligibilty for tenure

Posted on October 29, 2010
Jarema credit and eligibilty for tenureBarbaccia v Locust Valley CSD, 282 AD2d 674The central issue in the Barbaccia case concerned a teacher?s eligibility for Jarema credit for the purposes of granting tenure. As the decision demonstrates, determining whether an individual qualifies for Jarema credit is not always an easy task...

Appellate Division reconsiders the disciplinary penalty imposed on an employee after finding the employee would not lose pension rights

Posted on October 29, 2010
Appellate Division reconsiders the disciplinary penalty imposed on an employee after finding the employee would not lose pension rightsKennedy v. Bennett, 26 AD3d 334; reconsidered and revised, 31 AD3d 764; motion for leave to appeal denied, 7 NY3d 718 Brian M...

Requiring teachers to get school's permission to use school's internal mailboxes to distribute personal materials does not violate free speech rights

Posted on October 28, 2010
Requiring teachers to get school's permission to use school's internal mailboxes to distribute personal materials does not violate free speech rightsSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission...

Mandatory retirement

Posted on October 28, 2010
Mandatory retirementMainello v McCall, 252 AD2d 235, motion to appeal dismissed, 93 NY2d 919In 1988 the state amended the Retirement and Social Security Law to change the mandatory age of retirement for certain members of the Police and Firefighters? Retirement System [PFRS] from age 60 to age 57 [Chapter 795 of the Laws of 1988]...

Religious freedom and employment

Posted on October 28, 2010
Religious freedom and employmentMarchi v BOCES, 2nd Cir., 173 F.3d 469A school risks violating the Establishment Clause of the U.S. Constitution if any of its teachers? activities give the impression that the school endorses a religion. But how far can a school board go in limiting a teacher?s classroom speech on religious issues before it tramples on another Constitutional guarantee: the right to free expression? The U...

The right to appeal an arbitration

Posted on October 28, 2010
The right to appeal an arbitrationWilson v NYC Bd. of Ed., 261 AD2d 409The Wilson decision illustrates a basic tenet to arbitration under a collective bargaining agreement: the ?owners? of the arbitration are the parties to the Taylor Law agreement. Those parties typically are the employer and the union...

Right to counsel during administrative disciplinary action

Posted on October 28, 2010
Right to counsel during administrative disciplinary actionElmore v Plainview-Old Bethpage CSD, 273 AD2d 307, motion for leave to appeal denied, 99 NY2d 509Employees against whom disciplinary charges have been filed typically have the right to (1) testify on their own behalf and (2) the right to representation by an attorney...

Appealing a disciplinary termination

Posted on October 28, 2010
Appealing a disciplinary terminationStevens v McGraw CSD, 261 AD2d 698, motion for leave to appeal denied, 93 NY2d 816McGraw Central bus driver Arthur Stevens? failure to comply with Education Law Section 3813 proved fatal to his challenging his dismissal from his position following a disciplinary hearing pursuant to Section 75 of the Civil Service Law...

Governor Paterson approves layoff plan that will reduce the State?s workforce by an additional 2,000 employees

Posted on October 28, 2010
Governor Paterson approves layoff plan that will reduce the State?s workforce by an additional 2,000 employeesSource: Office of the GovernorOn October 28, 2010, Governor Paterson said that New York State is facing more than an $8 billion deficit next year and more than a $30 billion deficit over the next three years...

Tenure by estoppel

Posted on October 27, 2010
Tenure by estoppelMatter of Andrews v Board of Educ. of the City School Dist. of the City of N.Y., 2010 NY Slip Op 32963(U), October 15, 2010, Supreme Court, New York County. Judge Joan A. Madden [Not selected for publication in the Official Reports]Dana Andrews sought a court order declaring that she had attained tenure by estoppel as a result of her being continued in service after the end of her probationary period and direct the New York City Board of Education to reinstate her to her former position with back salary...

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