Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Monday, December 31, 2012

Calif and IL Enact Legislation Prohibiting Employer's From Requiring Passwords

Well, it is a New Year. As a result, several new laws will become effective. Among the most interesting employment laws are from CA and IL which both enacted legislation banning employers from requiring that employees disclose their passwords. A Reuters Story discussing new legislation is available here.

Mitchell H. Rubinstein

December 31, 2012 in Employment Law, Law Review Ideas | Permalink | Comments (0)

Saturday, December 29, 2012

Unambiguous contract of employment language that is inconsistent with the employer’s policy nevertheless controls

Chatelle v North Country Community Coll, 2012 NY Slip Op 08215, Appellate Division, Third Department
When North Country Community College hired Shane Chatelle as its Facilities and Special Projects Manager in 2004, the College’s President provided Chatelle with a letter setting forth his salary and enclosing a copy of the resolution of its Board of Trustees approving the appointment together with a written statement of the Board's "management confidential"* staff policy “purporting to provide,” that among other benefits, that Chatelle would be compensated for up to 180 days of accumulated sick leave upon his severance from employment.
In 2011, Chatelle resigned from his position and requested compensation for his accumulated sick leave. The College, claiming that, despite the statement provided to him upon his appointment, its actual policy authorized compensation for accrued sick leave only upon retirement.
Chatelle sued, contending breach of contract, among other things. Supreme Court granted Chatelle’s motion in part, awarding him $44,114.96 in damages for breach of contract but dismissed his remaining claims. Chatelle and the College “cross appealed” the Supreme Court’s ruling.
The Appellate Division said that the written statement provided to Chatelle upon his employment indicated that he was entitled to "the benefits afforded by the existing [m]aster [a]greements except where modified or defined by the following [benefits]."
With regard to the sick leave benefit, the statement provided that Chatelle was entitled to 30 sick days per year, cumulative to 180 days and "[a]t [the] time of severance sick leave will be compensated."
Although the College, relying on extrinsic evidence, argued that the statement given to Chatelle was in error and that the Board had intended to adopt a policy that only compensated for sick leave at retirement, the Appellate Division said that had “no reason to consider this [extrinsic] evidence because the statement's language is clear and unambiguous.”
Accordingly, said the court, the College is bound by the terms of the writing provided to Chatelle as part of his employment contract “and may not rely on its unilateral mistake to void the agreement,” explaining that the text of the statement is clear and Chatelle does not rely on past practice nor claim “estoppel to enforce his contractual right.”
The Appellate Division, however, modified Supreme Court’s judgment granting Chatelle $44,114.96 as payment for his unliquidated sick leave accruals by reducing the award to $4,770, “representing [Chatelle 's] 159 accrued sick days at $30 per day."
* Presumably Chatelle was designated "managerial" or "confidential" within the meaning of  §201.7 of the Civil Service Law [The Taylor Law] upon his appointment.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08215.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

December 29, 2012 in Public Sector Labor Law | Permalink | Comments (0)

Thursday, December 27, 2012

Employer met its burden of showing employee failed to establish her age discrimination, hostile work environment, constructive discharge and retaliation claims

In this action, the plaintiff [P] alleged that she was the target of unlawful age discrimination, served in a hostile work environment, and was subjected to constrictive discharge and retaliation.
The Appellate Division sustained the Supreme Court’s dismissal of the P’s petition, finding that the employer had met its burden of demonstrating P failed to establish her claims of age discrimination, hostile work environment, constructive discharge, and retaliation.
The Appellate Division, with respect to P’s unlawful discrimination claim, explained that there was no evidence that P suffered from an adverse employment action. The assignment of P to certain non-supervisory tasks ordinarily performed by teachers constituted "merely an alteration of her responsibilities and did not result in a materially adverse change,' since [she] retained the terms and conditions of her employment, and her salary remained the same."*
The court said that P failed to raise a triable issue of fact as to her hostile work environment claim, since the alleged conduct and insults by her employer and coworkers were not "sufficiently severe or pervasive to alter the conditions of [her] employment"
Addressing P’s claim of constructive discharge, the court said that standard for establishing "constructive dismissal" is higher than the standard for establishing a hostile work environment, “where, as here, the alleged constructive discharge stems from the alleged hostile work environment.” As P failed to raise a triable issue of fact with respect to her hostile work environment claim, "her claim of constructive discharge also fails.” 
Finally, the Appellate Division held that with respect to P's retaliation claim in found no evidence of an adverse employment action resulting from her filing of a notice of claim against the employer nor was there any evidence of a causal connection between P's commencement of litigation and the allegedly adverse actions against her, commenting that the conduct at issue began months before P filed the notice of claim
* As to P’s complaint alleged disciplinary memoranda in her file, threats of unsatisfactory ratings, disciplinary meetings and allegations of corporal punishment, these did not constitute adverse employment actions as P received "satisfactory end-of-year performance rating[s], and none of the [alleged] reprimands resulted in any reduction in pay or privileges."
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

December 27, 2012 in Employment Discrimination | Permalink | Comments (0)

Wednesday, December 26, 2012

Some School Districts To Begin Offering Online Classes

Online education is here to stay. Now, there are some K-12 districts that are considering online classes. A NY Times article about this is available here

I am not a big fan on online education on the college, law school or secondary level. An important part of education is learning to interact with peers, professors and others. It is also just too easy to take short cuts with an online class as the student may be watching TV instead of the screen. 

Online education also raises a host of labor law and other issues. Does anyone have an opinion about this.

Mitchell H. Rubinstein

December 26, 2012 in Education Law | Permalink | Comments (2)

Tuesday, December 25, 2012

Jail Worker's Claims Not Barred by Promotion, Back-Pay Grievance Award

From the Dec. 4, 2012 Daily Labor Report:

A female corrections officer granted a promotion after she filed suit claiming she was passed over for the position because of her sex can proceed with claims against her employer, despite being awarded the job and back pay, the U.S. District Court for the Middle District of Pennsylvaniarules (Kosek v. Luzerne Cnty., M.D. Pa., No. 3:11-cv-01558, 11/30/12).

Sarah Kosek's promotion to a correctional counselor position at Luzerne County Correctional Facility after filing a union grievance and later a federal sex discrimination action did not moot her claims against the county and prison warden under Title VII of the 1964 Civil Rights Act, the Civil Rights Act of 1871, and the Pennsylvania Human Relations Act because she may be entitled to additional injunctive and equitable relief, according to the court.

Mitchell H. Rubinstein

 

December 25, 2012 in Employment Discrimination | Permalink | Comments (0)

Saturday, December 22, 2012

D.C. Circuit Backs NLRB on Request for Data on Competitive Pressure

From the December 4, 2012 Daily Labor Report:

The District of Columbia Circuit enforces 2-1 a National Labor Relations Board order that required an Ohio manufacturer to give the United Auto Workers information about customers and pricing to support the company's claim it was experiencing competitive pressures that required it to seek substantial wage reductions from its employees (KLB Indus. Inc. v. NLRB, D.C. Cir., No. 11-1280, 12/4/12)

Mitchell H. Rubinstein

December 22, 2012 in NLRB | Permalink | Comments (1)

NY Law School Wins Round 2 In Fraud Case

Gomez-Jimenez v. New York Law School, ____A.D.3d____(1st Dept. Dec. 20, 2012), is an important case which we reported on earlier. It is one in a  series of cases challenging reporting practices of law schools across the cournty with respect to employment data. Plaintiff's theory was basically that New York Law School's published statistics were fraudlent and misleading. While the court affirmed the motion to dismiss against New York Law School, it did say some things which greatly trouble me as a member of the adjunct faculty at this school. Specifically, the court stated:

While we are troubled by the unquestionably less than candid and incomplete nature of defendant's disclosures, a party does not violate GBL 349 by simply publishing truthful information and allowing consumers to make their own assumptions about the nature of the information (see Andre Strishak & Assoc. v Hewlett Packard Co. 300 AD2d 608, 609-610 [2nd Dept 2002]; St. Patrick's Home for Aged & Infirm v Laticrete Intl., 264 AD2d 652, 655-656 [1st Dept 1999]; see also Corcino v Filstein, 32 AD3d 201, 202 [1st Dept 2006]). Accordingly, we find that defendant's disclosures were not materially deceptive or misleading (id.). . . .

We are not unsympathetic to plaintiffs' concerns. We recognize that students may be susceptible to misrepresentations by law school. As such, "[t]his Court does not necessarily agree [with Supreme Court] that [all] college graduates are particularly sophisticated in making career or business decisions" (MacDonald, 2012 WL 2994107, at *10). As a result, they sometimes make decisions to yoke themselves and their spouses and/or their children to a crushing burden because the schools have made misleading representations that give the impression that a full time job is easily obtainable when in fact it is not.

Given this reality, it is important to remember that the practice of law is a noble profession that takes pride in its high ethical standards. Indeed, in order to join and continue to enjoy the privilege of being an active member of the legal profession, every prospective and active member of the profession is called upon to demonstrate candor and honesty. This requirement is not a trivial one. For the profession to continue to ensure that its members remain candid and honest public servants, all segments of the profession must work in concert to instill the importance of those values. "In the last analysis, the law is what the lawyers are. And the law and the lawyers are what the law schools make them."[FN3] Defendant and its peers owe prospective students more than just barebones compliance with their legal obligations. Defendant and its peers are educational not-for-profit institutions [FN4]. They should be dedicated to advancing the public welfare [FN5]. In that vein, defendant and its peers have at least an ethical [*6]obligation of absolute candor to their prospective students.

I am not involved in this case and I only know what I read. I have  been at New York Law School for about 8 years and everyone has gone out of their way to serve and help students. I do not believe that anyone would intentionally mislead a student. Perhaps, this is why I find the court's language troubling-deeply troubling. As adjunct professors, we do not get to go to faculty meetings and we are not kept informed about the governance of the school, and that is very unfortunate. I would hope that New York Law School puts out some communication explaining its position.

Mitchell H. Rubinstein

 

December 22, 2012 in Law Schools | Permalink | Comments (1)

Thursday, December 20, 2012

Unambiguous contract of employment language that is inconsistent with the employer’s policy nevertheless controls

Chatelle v North Country Community Coll, 2012 NY Slip Op 08215, Appellate Division, Third Department
When North Country Community College hired Shane Chatelle as its Facilities and Special Projects Manager in 2004, the College’s President provided Chatelle with a letter setting forth his salary and enclosing a copy of the resolution of its Board of Trustees approving the appointment together with a written statement of the Board's "management confidential"* staff policy “purporting to provide,” that among other benefits, that Chatelle would be compensated for up to 180 days of accumulated sick leave upon his severance from employment.
In 2011, Chatelle resigned from his position and requested compensation for his accumulated sick leave. The College, claiming that, despite the statement provided to him upon his appointment, its actual policy authorized compensation for accrued sick leave only upon retirement.
Chatelle sued, contending breach of contract, among other things. Supreme Court granted Chatelle’s motion in part, awarding him $44,114.96 in damages for breach of contract but dismissed his remaining claims. Chatelle and the College “cross appealed” the Supreme Court’s ruling.
The Appellate Division said that the written statement provided to Chatelle upon his employment indicated that he was entitled to "the benefits afforded by the existing [m]aster [a]greements except where modified or defined by the following [benefits]."
With regard to the sick leave benefit, the statement provided that Chatelle was entitled to 30 sick days per year, cumulative to 180 days and "[a]t [the] time of severance sick leave will be compensated."
Although the College, relying on extrinsic evidence, argued that the statement given to Chatelle was in error and that the Board had intended to adopt a policy that only compensated for sick leave at retirement, the Appellate Division said that had “no reason to consider this [extrinsic] evidence because the statement's language is clear and unambiguous.”
Accordingly, said the court, the College is bound by the terms of the writing provided to Chatelle as part of his employment contract “and may not rely on its unilateral mistake to void the agreement,” explaining that the text of the statement is clear and Chatelle does not rely on past practice nor claim “estoppel to enforce his contractual right.”
The Appellate Division, however, modified Supreme Court’s judgment granting Chatelle $44,114.96 as payment for his unliquidated sick leave accruals by reducing the award to $4,770, “representing [Chatelle 's] 159 accrued sick days at $30 per day."
* Presumably Chatelle was designated "managerial" or "confidential" within the meaning of  §201.7 of the Civil Service Law [The Taylor Law] upon his appointment.
The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08215.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

December 20, 2012 in Arbitration Law | Permalink | Comments (1)

Wednesday, December 19, 2012

Newspaper reports admitted into evidence in an administrative disciplinary proceeding

2012 NY Slip Op 07479, Appellate Division, Fourth Department
A volunteer firefighter filed an Article 78 petition challenging the Volunteer Fire Company’s decision,  to expel him from membership in the Fire Company following a hearing held pursuant to General Municipal Law §207-l.
The petitioner contended that the Fire Company had violated §160.50 of the Criminal Procedure Law, which provides for the “sealing” of certain record, when the Company admitted into evidence media reports related to the petitioner's arrests or when it presented the testimony of a police investigator who was involved in the relevant criminal investigations.
As to newspaper media reports concerning petitioner's arrests, the Appellate Division, citing New York State Dept. of Mental Hygiene v State Div. of Human Rights, 103 AD2d 546, 549, affd 66 NY2d 752, said that such newspaper reports are not "official records and papers . . . relating to [the petitioner's] arrest or prosecution" within the meaning of CPL §160.50(1)(c). Further, said the court, it is " permissible to consider the independent evidence of the conduct [of the petitioner] leading to the criminal charges."
As to the testimony of the police investigator, the court explained that the police investigator was "free to testify from memory" concerning the conduct that led to the petitioner's arrests.”
The Appellate Division then stated there was substantial evidence establishing that the petitioner had exhibited a lack of "good moral character" in violation of Article II, §2 of the Fire Company's Constitution and By-laws and had committed misconduct under General Municipal Law §209-l".
N.B. §209-l provides for the removal of volunteer officers and volunteer members of fire departments charged with, and found guilty of, misconduct or incompetence after a hearing.
The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07479.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

December 19, 2012 in Arbitration Law | Permalink | Comments (0)

Tuesday, December 18, 2012

Recent rulings and recommendations by OATH Administrative Law Judges

Employee alleged to have refused to work overtime
OATH Index No 1748/12
A hospital special officer was charged with insubordination after refusing to work mandatory overtime on 42 occasions. The employee did not appear at the hearing and the matter proceeded by inquest.*
Administrative Law Judge Kara J. Miller found that on each occasion the officer was given a form ordering him to work mandatory overtime and warning him that non-compliance could result in disciplinary action.  Each form was signed and dated by special officer and a supervisor. 
ALJ Miller found that this documentation proved the insubordination.  She recommended that the special officer be suspended without pay for 45 days.
* Courts have held that the appointing authority or its designee may proceed with the disciplinary action even though the employee is not present. Where the individual is to be  tried inabsentia, a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did appear at the appointed time and place. Notwithstanding the absence of the individual, the burden is on the charging party to present and prove the disciplinary charges filed against the worker.
Supervisor charged with leave violations, failure to supervise subordinates, sleeping on duty and misuse of agency property.
OATH Index No. 760/12 
Following a 7-day hearing, ALJ Kevin F. Casey sustained some of the leave violations, the sleeping on duty charge and the misuse of property charge, but he dismissed the failure to supervise charges. 
Noting that it was undisputed that some of supervior’s absences may have been due to medical conditions that he developed after his service at Ground Zero, and that the most serious disciplinary penalty previously imposed on employee was the loss of 10 vacation days, Judge Casey found termination of employment to be an overly harsh penalty and recommended a 48-day suspension without pay, based on principles of progressive discipline. 
The decision is posted on the Internet at Dep’t of Sanitation v. Harris (in PDF),  
Employees alleged to have ignored directives to stop distributing union literature while not on duty
OATH Index Nos. 1497/12, 1499/12, 1707/12
Three New York City correction officers were charged with a number of allegations of misconduct, chief among them refusing to comply with orders to stop distributing union literature on Rikers Island while not on duty and refusing to obey orders to leave the secured island.
The individuals denied they were ever given such orders and asserted a First Amendment right to distribute union information while off-duty. They also offered videos of some of the incidents into evidence.
ALJ Alessandra F. Zorgniotti sustained the charges that correction officers refused to obey orders to stop distributing their materials and orders to leave the island, as well as charges that one officer filed a false report and another failed to turn over his parking pass promptly.
Other allegations were dismissed.
ALJ Zorgniotti noted that a correctional facility presents special circumstances under the First Amendment, and that the employees had failed to prove that their First Amendment rights outweighed the compelling interest of the Department in maintaining a secure facility. 
Judge Zorgniotti recommended that each officer be suspended for 10 days without pay. 
The decision is posted on the Internet at Dep’t of Correction v. Reuter (in PDF), OATH Index Nos. 1497/12, 1499/12, 1707/12
Motor vehicle operator alleged mentally unfit to perform her dutie
OATH Index No. 1546/12  
Administrative Law Judge John B. Spooner found that the individual had a mental disability but that the proof presented at the hearing was insufficient to sustain the allegation that she was presently unfit for her job as a driver.
The ALJ noted that [1] neither of the two incidents proven at trial established that employee was an unfit driver, [2] the individual had recently received favorable evaluations of her driving performance, and[3]  there had been no complaints about the employee since January 2011.
Judge Spooner recommended that the disciplinary charges be dismissed.

The decision is posted on the Internet at  Admin. for Children’s Services v. Anonymous (in PDF),

 

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein


December 18, 2012 | Permalink | Comments (0)

Monday, December 17, 2012

Virginia Recognized Public Policy Exception and Holds Supervisors Can Be Personally Liable

Virginia recently recognized a public policy exception to the employment at will doctrine and further held that individual supervisors or managers who participated in the decision at issue can face personal liability. Details here.

Hat Tip: Workplace Prof Blog

Mitchell H. Rubinstein

December 17, 2012 in Employment-At-Will & Exceptions | Permalink | Comments (1)

Sunday, December 16, 2012

Dissatisfaction with employment does not entitle former employee to unemployment

Matter of Prince v. Commissioner of Labor, ____A.D. 3d____(3d Dept. Nov. 29, 2012), is an interesting unemployment case. It addresses whether an individual is disqualified from unemployment if he leaves his job because he is dissatisfied. He or she does. As the court explained:

[G]eneral dissatisfaction with working conditions, including the employer's training procedures, does not constitute good cause for leaving employment" (Matter of Forman [Commissioner of Labor], 3 AD3d 642, 643 [2004] [internal quotation marks and citation omitted]). Although claimant did not believe that the employer's training procedure was adequate, he failed to participate in all of the training offered. Claimant left his employment [*2]without taking reasonable steps to protect his job and provide the employer an opportunity to remedy the situation. Accordingly, we find that substantial evidence supports the Board's determination that claimant left his employment without good cause (see Matter of Matuszewski [Commissioner of Labor], 24 AD3d 1153, 1154 [2005]; Matter of Forman [Commissioner of Labor], 3 AD3d at 643; Matter of Greenspan [Commissioner of Labor], 284 AD2d 715, 715-716 [2001]). We have considered claimant's contention that he was denied the opportunity to present documentary evidence and find it to be unpersuasive.

Mitchell H. Rubinstein

December 16, 2012 in Employment Law | Permalink | Comments (0)

Saturday, December 15, 2012

Super-Precedent and Stare Decisis

Doug Berman at Sentencing Law & Policy Blog commented yesterday on the Supreme Court's cert grant last month in Alleyne v. United States wherein the question is "Whether this Court's decision in Harris v. United States, 536 U.S. 545 (2002), should be overruled."  Harris is a federal sentencing case in the Apprendi line of cases and is important to federal criminal law practitioners on that ground.  However, Berman notes:

[T]he notion of whether Harris "should be overruled" has me thinking Alleyne could be a sleeper case concerning the doctrine of stare decisis in constitutional law and practice.  Significantly, Harris did not create the constitutional rule that legislatures could allow sentencing judges to find facts by a preponderance of evidence to trigger the application of mandatory minimum prison terms.  Harris merely reaffirmed this constitutional doctrine in 2002; it was established back in 1986 in McMillan v. Pennsylvania (and the McMillan opinion suggested its holding was just a reaffirmation of constitutional rules first set out in the 1949 case of Williams v. New York).  In other words, Harris is not just a regular precedent: like Roe v. Wade and other controversial rulings often challenged and often reaffirmed, the constitutional doctrines allowing judges to find facts to trigger mandatory minimums arguably qualify as a "super-precedent."

Like Professor Berman, I do not consider myself a sufficiant expert on constitutional theory to say whether super-precedents exist. 

December 15, 2012 | Permalink | Comments (0)

Thursday, December 13, 2012

No legal obligation to initiate disciplinary charges against an individual

Decisions of the Commissioner of Education, Decision #16,427
A tenured high school teacher alleged that the high school superintendent neglected her duty to ensure the integrity of the school system by failing to initiate disciplinary charges against the principal of the high school at which he was serving.
The teacher alleged that he reported the school’s principal for alleged violations including failure to identify at-risk students as required by Title I of the federal Elementary and Secondary Education Act (20 USC §6301, et seq.) and scoring irregularities on New York State Regents mathematics examinations.
Following his reporting these alleged violations, the teacher claimed that the principal retaliated against him by [1] placing several disciplinary letters in his personnel file, [2] his being ordered to undergo medical examination and [3] his removal from the school to a “temporary assignment center.”*
The teacher asked the Commissioner to remove the high school superintendent and the Chancellor of the New York City Department of Education from their respective positions because they failed to take disciplinary action against the principal.
After considering a number of procedural issued, the Commissioner said that the teacher’s application “must be dismissed on the merits.”
The Commissioner explained that a member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.
The teacher alleged that the high school superintendent “neglected her duty to ensure the integrity of the school system by failing to initiate disciplinary charges against [the principal].” However, said the Commissioner, the teacher s failed to meet his burden of proof as he did not establish how the superintendent’s failure to file an Education Law §3020-a charge against the principal, at his request, constituted a willful violation or neglect of duty under the Education Law, requiring her removal under Education Law §306 nor did the teacher show that the superintendent “was under a legal obligation to initiate Education Law §3020-a charges against [the principal].”
The Commissioner ruled that “On the record before me, I find that [the teacher] has failed to demonstrate that [the high school superintendent] has willfully neglected her duties [and] failed to establish any basis for [the superintendent’s] removal” and denied the teacher’s application.
* The teacher was later restored to service at the school..
The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16427.html

Reprinted by permission

New York Public Personnel Law

Mitchell H. Rubinstein

December 13, 2012 in Education Law | Permalink | Comments (0)

Wednesday, December 12, 2012

DC Circuit Issues Major Decision On Withdraw of Recognition

DCCir2

SFO Goodnite Inn v. NLRB, ____F.3d____ (D.C. Cir. Nov. 20, 2012). The D.C. Circuit enforced  a National Labor Relations Board order finding a California hotel improperly withdrew recognition from a UNITE HERE local, rejecting the hotel's argument that it lawfully relied on anti-union petitions signed by a majority of its employees.

Mitchell H. Rubinstein 

December 12, 2012 in Labor Law, NLRB | Permalink | Comments (0)

Tuesday, December 11, 2012

Allegations of negligent hiring and supervision of employee rebutted by evidence submitted by employer in support of its motion to dismiss the lawsuit

"John Doe 1," v Board of Educ. of Greenport Union Free Sch. Dist., 2012 NY Slip Op 07633, Appellate Division, Second Department
Parents of a student at the Greenport Union Free School District alleged that a teacher's aide employed by the school district engaged in an inappropriate sexual relationship with their child.
Among the complaints asserted against the school district and certain of its officers was a cause of action alleging that these defendants were [1] vicariously liable for the actions of teacher’s aide and [2] were liable for the negligent hiring and supervision of the aide.
The Appellate Division held that the evidentiary material submitted in support of the school district’s motion to dismiss the action as to the district and certain of its employees demonstrated that the parents did not have a cause of action against those defendants sounding in either vicarious liability or negligent hiring and supervision, explaining that all of the alleged improper acts by school aide took place off school premises and, or, outside of school hours, when the school defendants had no custody or control of the students and no duty to monitor or supervise the conduct of the school aide.
Further, said the court, the evidence demonstrated that the conduct of aide was personally motivated and constituted a complete departure from her duties as a school district employee, thereby negating any potential vicarious liability on the part of the school defendants for her alleged tortious acts.
As to the claim that the school district was liable for negligent hiring and supervision of the aide, the Appellate Division said that the evidence established that school district “properly investigated” the aide prior to her being hired, and that the school district had no notice of any propensity on her part to sexually assault students.
The court also noted that the parents did not allege that the school district defendants knew or had reason to know of any improper behavior by the aide nor was any nexus between aide's employment and the alleged sexual assaults, since they were separated by time, place, and the intervening independent acts of the aide.
Accordingly, ruled the Appellate Division, Supreme Court should have granted that branch of the school district's motion to dismiss the complaint insofar as asserted against the school district and its named officials.
The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07633.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

December 11, 2012 in Employment Law | Permalink | Comments (0)

Monday, December 10, 2012

Arbitration award held to be “irrational and defies common sense” for a second time remanded to a different arbitrator

Social Servs. Employees Union Local 371 v City of New York Admin. for Children's Servs., 2012 NY Slip Op 07403, Appellate Division, First Department
A Child Protection Specialist Supervisor II with the New York City Administration for Children's Services (ACS), pleaded guilty to grand larceny in the fourth degree, for filing false income tax returns using confidential ACS client information to fraudulently claim entitlement to state and local tax credits.
This matter was ultimately assigned to disciplinary arbitrator Rose F. Jacobs, who imposed a penalty of suspension, after which employee was to be restored to his former position.
On appeal of the lower court's confirmance, the Appellate Division vacated the arbitrator's award as "irrational and defies common sense" because "[r]einstated to the position of ACS supervisor, [the employee] again would have access to the ACS database from which he extracted the information he used to perpetrate his crime."*
The court remanded the matter to the arbitrator for her reconsideration of the penalty to be imposed. Notwithstanding the clear directive by the Appellate Division not to do so, the arbitrator again restored employee to his former position.
Supreme Court denied Local 371’s CPLR 7510 petition to confirm the second award of the arbitrator reinstating the employee to his former position and granted the City’s cross petition to vacate the award insofar as it orders the reinstatement of the employee.
Local 371 appealed and the Appellate Division unanimously agreed with Supreme Court's ruling. It then remanded the matter to a different arbitrator for reconsideration of the appropriate penalty explaining that it found, “once again and for the same reasons, that the arbitrator's award is irrational and defies common sense,” citing City School District of the City of New York v Campbell, 20 AD3s 313.
Accordingly, the Appellate Division, approving Supreme Court’s “vacated the award reinstating the grievant,” said that it was remanding the matter to a different arbitrator only for reconsideration of the appropriate penalty.
* See 56 AD3d 322, 322 [1st Dept 2008], lv dismissed 12 NY3d 867.

The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

December 10, 2012 in Arbitration Law | Permalink | Comments (0)

Sunday, December 9, 2012

Claims for certain health insurance benefits and the liquidation of sick leave credits upon retirement rejected

Decision 1. Suttlehan v Town of New Windsor, 2012 NY Slip Op 07292, Appellate Division, Second Department [re: Health Insurance]
Decision 2. Suttlehan v Town of New Windsor, 2012 NY Slip Op 07293, Appellate Division, Second Department [re: Sick Leave Credits]
Town of New Windsor Town Justice Donald J. Suttlehan sued the Town, contending that it was in breach of contracts when it (1) eliminated his alleged entitlement, upon his retirement, to fully paid lifetime health care benefits for himself and his spouse [Decision 1] and (2) failing to pay him for his unused sick-leave credits upon his retirement [Decision 2].
On January 7, 2009, the Town adopted resolutions prospectively awarding Justice Suttlehan [a] “fully paid lifetime medical benefits for himself and his spouse” upon his retirement and [b] granted certain post-retirement health-care benefits to elected officials with eight years or more of service. On May 6, 2009 the Town adopted a resolution revoking its January 7, 2009 action with respect to providing “lifetime health care benefits” and Town modified its earlier “unused sick-leave” resolution in accordance with a new schedule.
Justice Suttlehan retired in July 2009. He then filed petitions in Supreme Court challenging the Town’s actions that he alleged truncated certain benefits to which he claimed he was entitled upon his retirement..
With respect to his claim to “lifetime medical benefits,” Justice Suttlehan alleged “breach of contract and promissory estoppel….” He argued that, among other things, that the Town’s January 7, 2009 resolution imposed a contractual obligation upon the Town to provide him with lifetime medical benefits or, in the alternative, that, by adopting the resolution, the Town became obligated to provide him with those benefits under the theory of promissory estoppel.
The Appellate Division sustained the Supreme Court’s dismissal of Justice Suttlehan’s petition, holding that the Town had met its “prima facie burden of establishing that [it was] not obligated to provide lifetime medical benefits to the plaintiff and his spouse, and the plaintiff failed to raise a triable issue of fact in opposition.”
The Appellate Division said the resolution dated May 6, 2009, which revised Justice Suttlehan’s health-care benefits only with respect to coverage for claims made, or to be made, subsequent to his separation from Town employment, was not discriminatory as it was applicable to various elected officials -- the Town Supervisor, Town Clerk, Superintendent of Highways, Receiver of Taxes, Town Justices, and members of the Town Board -- as well as to the Town’s judiciary.
Rejecting Justice Suttlehan’s argument that the resolution violated his rights pursuant to the separation of powers doctrine or the compensation clause of the New York Constitution, the Appellate Division noted that the resolution addressed the prospective reduction of a municipal official's health benefits only after his or her retirement, not the reduction in the salary or benefits of a justice during his or her term in office.
In any event, said the Appellate Division, "[a] municipal resolution is, in general, a unilateral action that is temporary in nature and, thus, it does not create any vested contractual rights," citing Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326.
As to Justice Suttlehan’s cause of action to recover damages for breach of contract with respect to the liquidation of his unused sick-leave credits, Supreme Court held that he was entitled to payment for 397 unused sick days, The Town appealed the court’s decision.
The Appellate Division vacated the Supreme Court’s ruling, holding that "In general, a public employee whose employment has terminated may not recover the monetary value of unused . . . sick time in the absence of statutory or contractual authority."
The Town, said the court, had met its prima facie burden of showing its entitlement to judgment as a matter of law by demonstrating that there was no statutory or contractual authority for the relief sought by Justice Suttlehan and Supreme Court should have dismissed the Justice’s cause of action to recover damages for breach of contract with regard payment for his unused sick-leave credits.
The “health insurance” decision is posted on the Internet at:
The “sick leave” decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07293.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

December 9, 2012 in Public Sector Labor Law | Permalink | Comments (0)

Saturday, December 8, 2012

Virginia Supremes Hold That Supervisor Can Be Personally Liable In Public Policy Exception Case

A divided Virginia Supreme Court recently held 4-3 that a state law claim of wrongful discharge in violation of public policy may be pursued against an individual supervisor or manager who participated in the wrongful firing but was not the worker's actual employer (VanBuren v. Grubb, Va., No. 120348, 11/1/12).

Writing for the majority to answer a question certified by the Fourth Circuit, Justice Millette says the purpose of Virginia's wrongful discharge tort is to deter firings in violation of public policy. That purpose “is best served if individual employees in a position of power are held personally liable for their tortious conduct.” 

By contrast, the dissent would find "[o]nly an employer can breach that duty because only an employer has the ability to hire and fire.” 

Mitchell H. Rubinstein

December 8, 2012 in Employment-At-Will & Exceptions | Permalink | Comments (0)

Friday, December 7, 2012

Will Michigan Become A RIght To Work State

December 7, 2012 in Labor Law | Permalink | Comments (0)