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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

Sovereign immunity

Posted on June 25, 2010
Sovereign immunityAlston v State of New York, Ct. of Appeals, 97 N.Y.2d 159The doctrine of sovereign immunity generally shields a state from suit absent its consent. In Alden v Maine, 527 US 706, the Supreme Court of the United States found that State sovereign immunity is "implicit in the constitutional design...

Terminating an employee during a disciplinary probation period

Posted on June 25, 2010
Terminating an employee during a disciplinary probation periodFortner v NYC Dept. of Corrections, 280 A.D.2d 381In many cases disciplinary charges are "settled" by the employee agreeing to serve a "disciplinary probationary period." The majority of such settlements set out the terms and conditions of the probation and typically provide for the termination of the individual without any further hearing if he or she violates the terms of the settlement...

Civil Service Law prohibits assigning out of title work to an employee in other than an emergency situation

Posted on June 24, 2010
Civil Service Law prohibits assigning out of title work to an employee in other than an emergency situationWoodward v GOER, 279 A.D.2d 725The Governor's Office of Employee Relations [GOER] denied the out-of-title work grievance filed by a Grade 22 Senior Correction Counselor, Larry Woodward...

An employee placed on Section 72 leave for ordinary disability subsequently terminated for "abandonment of position"

Posted on June 24, 2010
An employee placed on Section 72 leave for ordinary disability subsequently terminated for "abandonment of position"Fronczak v NYS Dept. of Correctional Services, CA2, LEXIS 2167Section 72 of the Civil Service Law -- leave for ordinary disability -- permits an appointing authority to place on employee on involuntary leave without pay if he or she is found unable to perform the duties of his or her position as a result of an illness or a disability that is not an occupational injury or disease as defined in the Workers' Compensation Law...

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��Employee terminated after being found guilty of off-duty misconduct

Posted on June 24, 2010
Employee terminated after being found guilty of off-duty misconductLosada v Safir, 278 A.D.2d 59The Appellate Division sustained the disciplinary termination of New York City police officer Fernando Losada based on a finding that Losada, while off-duty, was in a traffic-related altercation during which he "wrongfully punched and kicked the driver of the other vehicle, causing him physical injury...

Employee terminated after failing to follow the employer's policy denied unemployment insurance benefits

Posted on June 24, 2010
Employee terminated after failing to follow the employer's policy denied unemployment insurance benefitsMatter of Cruz , 288 A.D.2d 813Angel Cruz was dismissed from his position of Director of Public Safety and Security at the City University's Queens College campus...

Governor Paterson accepts final report of Task Force on Public Retiree Health Insurance

Posted on June 24, 2010
Governor Paterson accepts final report of Task Force on Public Retiree Health InsuranceSource: Office of the GovernorOn June 23, 2101 Governor David A. Paterson accepted the final report of the Task Force on Public Employee Retirement Health Care Benefits...

Former employee?s ADA retaliation claim survives the dismissal of her violation of the ADA complaint

Posted on June 23, 2010
Former employee?s ADA retaliation claim survives the dismissal of her violation of the ADA complaintRagusa v Malverne Union Free School Dist., USCA, 2nd Circuit, No. 08-5367-cv, June 21, 2010, [Unpublished]Malverne Union Free School District mathematics teacher Biljana Ragusa sued the District, the school board and former school superintendent Mary Ellen Freeley, alleging that she had been the victim of unlawful discrimination because of her gender, age, and disability...

NLRB holds that union commited an unfair labor practice by disciplining a member for reporting another employee's safety violation

Posted on June 23, 2010
NLRB holds that union commited an unfair labor practice by disciplining a member for reporting another employee's safety violationSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright � 2010, Mitchell H...

United States Supreme Court holds city?s review of employee messages on city pager was reasonable under the circumstances

Posted on June 23, 2010
United States Supreme Court holds city?s review of employee messages on city pager was reasonable under the circumstances Source: Meyers Nave PLC. Reproduced with permission. Copyright � 2010, Meyers Nave. All rights reservedIn City of Ontario v. Quon, the U...

The American Recovery and Reinvestment Act of 2009 (ARRA), as amended

Posted on June 23, 2010
The American Recovery and Reinvestment Act of 2009 (ARRA), as amendedSource: US Department of Labor, Employee Benefits Security AdministrationThe Act, as amended, provides for premium reductions for health benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985, commonly called COBRA...

Section 3020-a disciplinary appeals

Posted on June 22, 2010
Section 3020-a disciplinary appealsAustin v NYC Board of Education, 280 A.D.2d 365The Austin decision by the Appellate Division, First Department, sets out the standards followed by the courts in considering appeals from Section 3020-a disciplinary determinations...

State law claims survive ADA claim dismissal

Posted on June 22, 2010
State law claims survive ADA claim dismissalGiordano v City of New York, CA2, 274 F.3d 740The Giordano case illustrates the fact that sometimes it is possible to maintain a discrimination lawsuit under state law notwithstanding the fact that the federal courts have dismissed similar claims alleging violations of federal law...

Probationary termination

Posted on June 22, 2010
Probationary terminationHiggins v La Paglia, 281 A.D.2d 679, appeal dismissed, 96 N.Y.2d 854The Ulster County Sheriff Michael L. Paglia terminated correction officer Bradley Higgins at the end of his one-year probationary period. Higgins filed a grievance and initiated an Article 78 action seeking to overturn the Sheriff's decision...

Appling the correct test in resolving a challenge to an administrative determination

Posted on June 22, 2010
Appling the correct test in resolving a challenge to an administrative determinationMatter of Heather Duncan v Klein, 38 A.D.3d 380Heather Duncan held certification as a school bus escort and worked for the New York City Office of Pupil Transportation...

FMLA leave for domestic partners: the new federal employee leave regulations a stalking horse

Posted on June 21, 2010
FMLA leave for domestic partners: the new federal employee leave regulations a stalking horseSource: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/Copyright � 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr...

Termination for cause may result in the loss of fringe benefits in retirement

Posted on June 21, 2010
Termination for cause may result in the loss of fringe benefits in retirementFarrell v City of Rensselaer, NYS Supreme Court, Justice James B. Canfield, [Not selected for publication in the Official Reports]Frequently the employer will provide health insurance and similar fringe benefits to its retirees...

Disciplinary probation

Posted on June 21, 2010
Disciplinary probationFeliciano v Safir, Supreme Court, [Not officially reported]Garnett v Safir, 253 A.D.2d 700, Motion for leave to appeal denied, 92 N.Y.2d 817The Feliciano Case:Although the specific events underlying the Feliciano case are but rarely encountered, the decision demonstrates that an employee?s ?disciplinary probation status? may follow the individual to a new agency upon his or her transfer if the new employer wishes to condition the approval of the transfer on the continuation in such status...

Review of an administrative determination by courts is limited in scope

Posted on June 21, 2010
Review of an administrative determination by courts is limited in scopeMatter of Reza v NYC Department of Parks & Recreation, 2007 NY Slip Op 30246(U), Supreme Court, New York County, Judge Charles J. Tejada [Not selected for publication in the Official Reports]Mohammad Reza sued his employer, the NYC Department of Parks and Recreation [DPR], seeking reinstatement to his position, restoration of certain annual leave credits and other relief, including appointment to a higher-grade position...

Termination of a probationer

Posted on June 21, 2010
Termination of a probationerMiller v Village of Wappingers Falls, App. Div., 289 A.D.2d 209In July 1998, Louis Miller, a registered Republican active in local party matters, was appointed as the zoning administrator of the Village of Wappingers Falls by the then Republican-controlled Village Board...

Use of a videotape as evidence in disciplinary hearing

Posted on June 21, 2010
Use of a videotape as evidence in disciplinary hearingPaulin v City of New York, App. Div., 288 A.D.2d 153On of the elements in the Paulin case was the use of a videotape in a disciplinary hearing.Fred Paulin, a New York City police officer, was charged with misconduct...

Defending and indemnifying employees

Posted on June 20, 2010
Defending and indemnifying employeesZimmer v Town of Brookhaven, 247 A.D.2d 109When a public employee is sued in connection with his or her performance of, or his or her failure to perform, official duties, usually he or she is entitled to look to his or her employer to provided him or her with representation in the proceeding...

If a CBA sets out the rights of an individual to arbitrate an employer?s disciplinary decision, those rights may not be expanded by another article

Posted on June 18, 2010
If a CBA sets out the rights of an individual to arbitrate an employer?s disciplinary decision, those rights may not be expanded by another articleFashion Inst. of Tech. v United Coll. Employees of Fashion Inst. of Tech., Local 3457, Am. Fedn. of Teachers, 2010 NY Slip Op 05329, 2010 NY Slip Op 05329, Appellate Division, First DepartmentThe relevant collective bargaining agreement [CBA] between the Union and the Institute had separate and distinct Articles that were relevant in this action: one governing general "Grievances" and a second setting out a ?Disciplinary Procedure...

Concerning the so-called ?Blue Wall of Silence?

Posted on June 18, 2010
Concerning the so-called ?Blue Wall of Silence?Diesel v Town of Lewisboro, CA2, 232 F.3d 92While some might allege that there is a "blue wall of silence"* encouraged by certain individuals involved in law enforcement, rarely does one find a court decision that specifically addresses the concept...

Determining when to apply the substantial evidence standard of review and when to apply the arbitrary and capricious standard in a disciplinary action

Posted on June 18, 2010
Determining when to apply the substantial evidence standard of review and when to apply the arbitrary and capricious standard in a disciplinary actionPierino v Brown, 281 A.D.2d 960The significant issue in the Pierino case concerns the proper standard to be applied in making the determination in an administrative disciplinary proceeding...

Absence during a probationary period

Posted on June 18, 2010
Absence during a probationary periodMatter of Garnes v Kelly, 2007 NY Slip Op 30262(U), Judge: Herman Cahn, [Not selected for publication in the Official Reports], Affirmed 51 A.D.3d 538Garnes was appointed as a New York City police officer on July 1, 2003...

Reporting threats of violence by a disgruntled employee to the police

Posted on June 18, 2010
Reporting threats of violence by a disgruntled employee to the policeAviles v Cornell Forge Co., CA7, 241 F.3d 589Violence at the work site is a growing concern to both employers and employees.The Aviles case involves an employer's fear of such violence after it learned that a disgruntled employee, Alfredo Aviles, had threatened a supervisor and was seen standing outside the building...

Proof of the alleged "crime" must be in the record of the disciplinary hearing to satisfy the "exception" to the �75 "18 month statute of limitation"

Posted on June 17, 2010
Proof of the alleged "crime" must be in the record of the disciplinary hearing to satisfy the "exception" to the �75 "18 month statute of limitation"Matter of Guynup v County of Clinton, 2010 NY Slip Op 04914, decided on June 10, 2010, Appellate Division, Third DepartmentTerry Guynup, a lieutenant with 14 years of service with the Clinton County Sheriff's Department, was served with disciplinary charges alleging misconduct, incompetence and insubordination pursuant to Civil Service Law �75...

Using personnel records in determining an appropriate disciplinary penalty

Posted on June 17, 2010
Using personnel records in determining an appropriate disciplinary penaltyMassaria v Betschen, 290 A.D.2d 602In the Massaria case the Appellate Division was asked to determine if was appropriate for the Section 75 hearing officer to consider a disciplinary settlement agreement entered into by an employee and his or her employer to resolve an earlier disciplinary action involving the employee when determining the penalty to be imposed on the employee after he or she was found guilty of misconduct and incompetence in a second, subsequent, disciplinary action...

Failure to serve the proper party a fatal procedural error

Posted on June 17, 2010
Failure to serve the proper party a fatal procedural errorAppeal of Stephanie Baker from action of the Board of Education of the City School District of the City of Elmira, Decisions of the Commissioner of Education #15,696Stephanie Baker, a probationary teacher, appealed the termination of her probationary appointment and denial of tenure by the Board of Education of the City School District of the City of Elmira...

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