Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Monday, July 13, 2015

Shape up, or you are going to lose your job" and "are you ok? Not Harassment

I bring  Hernandez v. Weil Cornell Medical Center, ___Misc. 3d___ (Bronx Co. July 6, 2015) to your attention because the court held that comments such as "shape up, or you are going to lose your job" and "are you ok? do not state a cause of action for intentional infliction of emotional distress or disability discrimination under New York State and City law.  The court reasoned:

The defendant has sufficiently demonstrated that the plaintiff did not plead any allegations in her complaint that would support her claims of discriminatory working conditions and hostile work environment. Statements by the defendant's employee such as, "shape up, or you are going to lose your job" and "are you ok?" do not amount to conduct that is extreme or outrageous. See Witchard v. Montefiore Medical Center, 103 AD3d 596 (1st Dept. 2013). The Appellate Division has held that an employer's statements that it would fire a disabled employee were not so pervasive as to establish a hostile work environment in violation of New York State Human Rights law.Witchard v. Montefiore Medical Center, (supra). The Appellate Division went on to affirm the employer's motion for summary judgment dismissing the complaint, in part, because the complaint lacked sufficient allegations to prove that the work environment was hostile.

Likewise, the act of questioning an employee's work cannot be fairly characterized as harassment or extreme behavior. Without more evidence, the statements and behavior of Weill Cornell's employees cannot be seen as extreme. Ferrer v. New York State Div. of Human Rights, 82 AD3d 431 (1st Dept. 2011) (finding that the specific conduct alleged by the petitioner in the complaint, if true, is legally insufficient to establish that the workplace was "permeated with discriminatory intimidation, ridicule and insult [and] isolated remarks or occasional episodes of harassment will not support a finding of a hostile or abusive work environment").

Mitchell H. Rubinstein

July 13, 2015 in Discrimination Law, New York Law | Permalink | Comments (1)

Wednesday, August 6, 2014

Randall, A Reasonable Penalty Under The Circumstances

Harvey Randall just updated his wonderful treatise on NYS Public Employee Discipline entitled "A Reasonable Penalty Under The Circumstances." We reviewed this book before and it just gets better and better. Every lawyer who practices in this area should have a copy of this book on his or her desk. 

The publishers description is as follows:

A Reasonable Disciplinary Penalty Under the Circumstances is a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in instances where the employee has been found guilty of misconduct or incompetence. It is available in two formats - as a large, paperback print edition, and as an ebook (PDF). 

Offenses considered in the book run from A [Abandoning a post without authorization] to Z [Zero drug tolerance policy violation]. 

The material in the was developed specifically for use by administrators, union officials, attorneys, arbitrators and others engaged in disciplinary actions involving public officers and employees serving with New York State as the employer and employees of its political subdivisions pursuant to the State's Civil Service Law, its Education Law, contract disciplinary grievance procedures negotiated pursuant to Article 14 of the Civil Service Law [the Taylor Law] and other relevant statutes, rules and regulations. 

It is also a valuable resource for those involved in disciplinary actions involving public officers and employees serving with other jurisdictions.

It can be purchased here. A free excerpt from the book can be found here

Mitchell H. Rubinstein


August 6, 2014 in Book Reviews, New York Law, Public Sector Employment Law | Permalink | Comments (0)

Friday, June 27, 2014

No Limits on Soda Size in NYC

New York's highest state court, the Court of Appeals, rejected the city's ban on sodas larger than 16 ounces yesterday.  The case, New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health and Mental Hygiene, No. 134 (N.Y., June 26, 2014) begins:

We hold that the New York City Board of Health, in adopting the "Sugary Drinks Portion Cap Rule", exceeded the scope of its regulatory authority.

The New York Times' Michael M. Grynbaum has a story here.

Craig Estlinbaum

June 27, 2014 in Administrative Law, Food and Drink, Interesting Cases, New York Law | Permalink | Comments (0)

Friday, May 30, 2014

Employee Who Resigns Because of Sexual Harassment is Eligible for Unemployment

Matter of Gascon, ___A.d. 3d ___(3rd Dep't. May 29, 2014), is an interesting case. As we all know, if an employee resigns, he is not eligible for unemployment. But, what if he or she resigns because of sexual harassment. Such employees would be eligible for unemployment. As the court stated:

        Whether a claimant has left employment for good cause so as to qualify for unemployment         insurance benefits is a factual issue to be resolved by the Board and its determination will be         upheld if supported by substantial evidence (see Matter of Petrov [Bragard Inc.Commissioner         of Labor], 96 AD3d 1339, 1339 [2012]; Matter of Garside [Commissioner of Labor];, 73 AD3d         1420, 1420 [2010]). Based upon claimant's testimony concerning various and continuing         incidents  of sexual harassment by the owner and, in particular, a final incident that         precipitated         her departure  from employment, we find that the record contains         substantial [*2]evidence   supporting the Board's  determination (seeMatter of Grace     [Astrocom Elecs., Inc.—Commissioner          of Labor];, 69 AD3d 1156, 1157 [2010]; Matter of     Braband [RF Tech.—Sweeney];, 239 AD2d 627, 628 [1997]). Although  the owner denied         engaging in the conduct alleged by claimant, and the  employer provided statements of         other employees indicating that they had no knowledge of the allegations of sexual         harassment, this evidence presented a credibility determination for the  Board to resolve . . 


May 30, 2014 in Labor Law, New York Law | Permalink | Comments (0)

Tuesday, April 8, 2014

NY Court of Appeals Issues Major Duty of Fair Representation Decision

Palladino v. CNY Centro, ___N.Y.3d___(April 8, 2014), is a major decision.  In a 5-2 decision the New York Court of Appeals affirms the dismissal of a duty of fair representation case brought against a labor union that refused to take a discharge case to arbitration. Why, because each and every member of the union did not ratify the decision. 

In so holding, the Court re-affirmed Martin v. Curran, 303 N.Y. 276 (1951) and quoted my article, Union Immunity from Suit in New York, 2 NYU J. L. & Bus. 641, 649 (2006).  The Court correctly reasoned that NY still follows the common law which does not consider unincorporated associations to be juristic entities. Liability remains with the individual union members.

The Court noted the critisim that the Martin rule has received and the fact that it is virtually impossible for any labor union in New York to have common law liability.

The Court, however, noted that Plaintiff could have filed a DFR improper practice under the Taylor Law. 

It is feels good to be cited by the Court of Appeals.

Mitchell H. Rubinstein


April 8, 2014 in Duty of Fair Representation, New York Law, Public Sector Employment Law, Public Sector Labor Law, Unions | Permalink | Comments (0)

Tuesday, January 7, 2014

Providing the names and home addresses of employees of a private contractor to an employee organization to be determined by applying a “balancing test” to avoid an "unwarranted invasion" of privacy

Massaro v New York State Thruway Auth., 2013 NY Slip Op 07234, Appellate Division, Third Department*
A union official submitted a Freedom of Information Law [FOIL] request to the New York Thruway Authority in an effort to “ensure that nonunion contractors comply with the prevailing wage law” (see Labor Law §220). Among other things, the official asked the Thruway to provide certified payroll records of a private nonunion contractor relating to work it performed on a public works project and the names and home address of the employees performing the work employed by the nonunion contractor.
The Thruway granted the official's request in part, providing employee titles and corresponding wage rates that were paid, redacting the employees' names, home addresses and Social Security numbers. The Thruway contended that providing the names and related information of the employees would constitute an unwarranted invasion of personal privacy within the meaning of FOIL.
After an unsuccessful administrative appeal, the official filed an Article 78 petition in Supreme Court seeking a court order directing the Thruway to provide him with the private employer’s employees' names and home addresses. Supreme Court dismissed the petition and official appealed that court’s ruling.
The Appellate Division, pointing out that the personal privacy exemption set out in Public Officers Law §87 [2] [b]) provides “a nonexhaustive list of categories of information that falls within the exemption.”
Where, however, none of the categories of exemption specifically cover the information demanded, the court said that the issue of whether there is an "unwarranted invasion" of privacy is decided "by balancing the privacy interests at stake against the public interest in disclosure of the information."
As to the balancing analysis, the Appellate Division said that “An unwarranted invasion of personal privacy has been characterized as that which ‘would be offensive and objectionable to a reasonable [person] of ordinary sensibilities.'  Here the official wishes to obtain the names and home addresses so that it can contact employees of the nonunion contractor to find out if they were paid as reported by their employer.”
In the words of the Appellate Division, “The scenario of nonunion employees of a nongovernment employer being contacted at their homes by someone from a union who knows their names, their home addresses, the amount of money they reportedly earn, and who wants to talk about that income would be, to most reasonable people, offensive and objectionable.” This, the court characterized as “a significant privacy interest.” Citing United States Dept. of Defense v Federal Labor Relations Auth., 510 US 487.
Rejecting the union official’s argument that the release of this information to his union is in the public interest since the union is attempting to ensure that the contractor paid appropriate wages and that the union is gathering necessary data should an underpaid employee desire its representation under Labor Law § 220-g, the Appellate Division said that the redacted payroll records that the Thruway provided – indicating employee titles and corresponding wage rates — provide “sufficient information (absent fraudulent record creation by a contractor) to confirm whether the contractor complied with wage requirements.”
Further, explained the court, in the event fraudulent or any other noncompliant conduct is suspected, an investigation may be initiated upon request to the appropriate government official as Labor Law §220 (7) provides that a governmental fiscal officer "shall on a verified complaint in writing of any person interested or of [a union] [or] may on his [or her] own initiative cause a compliance investigation to be made to determine whether the contractor . . . has paid the prevailing rate of wages."
The Appellate Division’s conclusion” “Notwithstanding the FOIL presumption of access to information gathered by the government and the important policy of ensuring payment of prevailing wages, the significant personal privacy interests implicated here prevail, particularly since the information already provided to petitioner should be sufficient to ensure compliance; in any event, other avenues are available to ensure compliance without invading the privacy of the employees of the nonunion contractor by disclosing their names and home addresses.”
* See also Stevens v New York State Thruway Authority, 2013 NY Slip Op 07235, Appellate Division, Third Department, a case involving essentially the same issues, posted on the Internet at:
The Massaro decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

January 7, 2014 in New York Law, Public Sector Labor Law | Permalink | Comments (0)

Friday, January 3, 2014

State Comptroller is required to correct any errors affecting a retiree's benefits upon the discovery of the error

2013 NY Slip Op 07238, Appellate Division, Third Department
A police officer [Officer] submitted an application for disability retirement benefits. While his application was pending, Officer’s employer filed disciplinary charges against him and, on November 19, 2007, he was terminated by the employer.
Officer’s application for disability retirement benefits was approved on August 12, 2008 and his effective retirement date was set as November 17, 2007, the date of Officer's last day on the employer’s payroll as reported by the employer.
However, after receiving additional information from the employer indicating that Officer had, in fact, remained on the employer’s payroll through November 19, 2007, the Retirement System adjusted Officer’s retirement date to November 20, 2007. 
Following an unsuccessful administrative appeal seeking to reinstate November 17, 2007 as the effective date of his retirement for disability, Officer filed an Article 78 petition seeking a court order vacating the Comptroller’s determination.
The Appellate Division affirmed the administrative determination noting that Comptroller “is vested with the exclusive authority to determine applications for retirement benefits and such determination, if supported by substantial evidence, must be upheld.”  Citing 2 NYCRR 309.6, the court said that the effective date of a member's disability retirement is either [1] "on the date of filing of such disability retirement application" or [2] "on the day after the last date on which the member receives salary, whichever is later."
As the Comptroller is required to correct any changes or errors affecting a retiree's benefits upon discovery thereof, notwithstanding Officer's claim that his effective retirement date was changed as a result of actions taken by the employer in retaliation for a civil rights claim that he had asserted against it, the Appellate Division held that the Comptroller is entitled to rely upon the payroll information provided by the employer.
As the record reflected Officer's termination date from the payroll as November 19, 2007, the Comptroller’s determination was held to be supported by substantial evidence and Appellate Division said that it found no basis to disturb it.
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

January 3, 2014 in New York Law, Public Sector Employment Law | Permalink | Comments (0)

Sunday, October 6, 2013

Drunken Run Could Leave Cornell Liable for Fatal Fall

Cornell University is potentially liable for the death of an intoxicated student who ran off the edge of a cliff in the middle of the night, even though the institution would have been immune if the youth had been using the campus hiking path for its intended purpose. The case is  King v. Cornell University, 2013 NY Slip Op 23278.

Read more:

Mitchell H. Rubinstein

October 6, 2013 in Education Law, New York Law | Permalink | Comments (0)

Monday, June 3, 2013

New York City Statute Establishes Unemployed As A Protected Group

Later this month, a NYC Local Law goes into effective which establishes unemploymed as a protected group. An excellent, summary of this new law is Geoffrey Mort, Implications of Statute Establishing Unemployed As A Protected Group, NYLJ (May 20, 2013). As the article explains:

When the New York City Council in March voted to override Mayor Michael Bloomberg's veto and enacted a law prohibiting employment discrimination against unemployed persons, it created the first new protected group in New York since the state Sexual Orientation Non-Discrimination Act was passed some years ago. The new act, with several exceptions discussed below, makes it unlawful for employers with four or more employees to discriminate with respect to hiring, compensation or the terms and conditions of employment against any unemployed person seeking a job or to advertise for a position and require current employment as a qualification. The purpose of the New York City Local Law Prohibiting Discrimination Based on an Individual's Unemployment is straightforward: in advocating for its passage, City Council Speaker Christine C. Quinn stated that "[w]e want to do everything we can to help people work" and said that a psychological stigma attached to being unemployed is "completely unfair."


Mitchell H. Rubinstein

June 3, 2013 in Employment Discrimination, New York Law | Permalink | Comments (0)

Thursday, October 11, 2012

Under NY Law, It is Ok To File and Serve Copies

I bring Rechler Equity v. AKR Corp., ____A.D.3d____(2d Dep't. Aug. 1, 2012), Download Rechler Equity AD3d (2d Dep't. 2012) Ok To Serve and File Copiesbecause it addresses a common issue. The court holds that under the CPLR, it is perfectly permissible for copies of pleadings to be served and filed. Thus, an original signature is not required.

Mitchell H. Rubinstein

October 11, 2012 in Litigation, New York Law | Permalink | Comments (0)

Tuesday, October 2, 2012

Employee’s termination based on the findings and recommendation of the disciplinary hearing officer


Snead v Village of Spring Valley2012 NY Slip Op 05749, Appellate Division, Second Department

Supreme Court dismissed a petition filed pursuant to Article 78 of the Civil Practice Law and Rules challenging the determination of the Village of Spring Valley Justice Court dismissing the individual from her position, noting that the Justice Court had adopted the findings and recommendation of the disciplinary hearing officer.
The Appellate Division affirmed the Justice Court’s action, noting that the alleged misconduct, falsification of public records, and insubordination, was supported by “substantial evidence adduced at the administrative hearing.”
In addition, the court held that “in light of the charges and the [employee’s] duties, the penalty imposed was not so disproportionate to the offenses as to be "shocking to one's sense of fairness," thus constituting an abuse of discretion as a matter of law, citing Pell v Board of Education, 34 NY2d 222.
The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

October 2, 2012 in New York Law, Public Sector Employment Law | Permalink | Comments (0)

Tuesday, September 25, 2012

Some Hospitals are Going Without Malpractice Insurance

This is a scarey thought. Some New York hospitals are going without malpractice insurance. While some of these institutions are saving money on their own to pay out future claims; others are not. A New York Times article about this practice is available here.

Mitchell H. Rubinstein

September 25, 2012 in New York Law | Permalink | Comments (0)

Thursday, July 12, 2012

A public employee’s retirement allowance paid by a public retirement system of this State ruled subject to the provisions of the Son of Sam Law


New York State Off. of Victim Servs. v Raucci, 2012 NY Slip Op 04440, Appellate Division, Third Department
The issue in this action: Does Retirement and Social Security Law §110* insulate the retirement benefits from a public retirement system of this State from “the broad reach of the Son of Sam Law, which does not expressly exempt pension funds?”**
The Appellate Division held that such retirement benefits are not exempt from the Son of Sam Law.
Steven C. Raucci, a former employee of the Schenectady City School District, was sentenced to a lengthy prison term upon his conviction of numerous crimes arising out of his alleged detonation and attempted detonation of explosive devices at two of his victims' homes. Raucci began receiving a retirement allowance from the New York State and Local Employees' Retirement System of approximately $5,800 per month.
The New York State Office of Victim Services sought a preliminary injunction prohibiting the withdrawal or transfer of those funds from Raucci’s inmate account. Raucci, and his spouse as “an interested person,” argued that RSSL §110 exempts the pension funds from garnishment or any other legal process.
Noting that prior to its amendment in 2001, the Son of Sam Law permitted victims to recover only "profits from a crime," i.e., property or income generated from the crime itself, the Legislature "expand[ed] the [Son of Sam] [L]aw to cover money and property that a convicted criminal receives from any source."
Accordingly, said the Court,  “The current version of the statute thus permits crime victims to commence an action ‘within three years of the discovery of any profits from a crime or funds of a convicted person’ broadly defined as "all funds and property received from any source by a person convicted of a specified crime (Executive Law § 632-a [1] [c]” [emphasis added by the court].
The Appellate Division said that only two categories of a convicted person's funds are not recoverable by crime victims: the first $1,000 in the convicted person's account and the first 10% of compensatory damages obtained by the convicted person in a civil judgment, less counsel fees.
* The decision summaries the provisions of §110 as follows: Retirement and Social Security Law §110 protects public employee pensions, providing that "[t]he right of a person to a pension . . . or a retirement allowance . . . to the return of . . . the pension . . . or retirement allowance itself . . . and the monies in [those] funds . . . [s]hall not be subject to execution, garnishment, attachment, or any other process whatsoever, and . . . [s]hall be unassignable."
** The decision refers to both a “pension” and a “retirement allowance.” A retirement allowance consists of a “pension portion” determined by the employee’s final average salary and his or her “years of member service,” which is funded by employer contributions plus an “annuity portion” based on the actuarial value of the employee’s contributions, or contributions made on his or her behalf as of the date of his or her retirement.
NYPPL comments: This decision raises a number of questions that may have to be addressed by the courts or the legislature such as [1] Is a retirement allowance being received by a surviving beneficiary or beneficiaries of a retired public employee of this State subject to the Son of Sam Law? and [2] Is a retirement benefit being received by an individual or his or her beneficiary or beneficiaries from a retirement program or plan other than a public retirement system of this State subject to the Son of Sam Law?
The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

July 12, 2012 in Employee Benefits Law, New York Law | Permalink | Comments (0)

Wednesday, June 27, 2012

Employee terminated for cause entitled to back pay for the period she was suspended without pay in excess of 30 days


The Westchester County Health Care Corporation adopted the recommendation of a hearing officer, made after a hearing pursuant to Civil Service Law §75, finding the employee guilty of certain charges of misconduct and insubordination. It then terminated the individual from its employ.
Te Appellate Division sustained Supreme Court’s dismissal of an Article 78 petition challenging the disciplinary termination of an employee with respect to the merits of the appeal. The court held that contrary to the individual’s contention, Westchester’s determination that the individual was guilty of certain charges of misconduct and insubordination was supported by substantial evidence in the record.
The court also rejected the individual’s claim that she was denied a fair hearing due to the alleged bias of the hearing officer as being without merit, finding that there was no evidence in the record to support her contention that the hearing officer was biased.
As to the penalty imposed, dismissal, the court ruled that termination was “not so disproportionate to the offenses committed by the petitioner as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law.”
Although the Appellate Division sustained Supreme Court’s dismissal of an Article 78 petition challenging the disciplinary action, the court remanded the matter to the lower court for its determination regarding any back pay due the dismissed individual.
Here, said the court, the individual “correctly contends that she is entitled to back pay for the period she was suspended without pay in excess of 30 days, excluding delay, if any, occasioned by her, and less unemployment insurance benefits received for that period, if any,” citing Civil Service Law §75[3].
The decision is posted on the Internet at:


Reprinted with permission New York Public Personnel Blog

Mitchell H. Rubinstein

June 27, 2012 in New York Law, Public Sector Labor Law | Permalink | Comments (0)

Sunday, June 10, 2012

NY Court of Appeals Holds More Stringent Dual Employment Standards Are Mandatory Subjects

Matter of NYC Transit Authority v. PERB, ___N.Y. 3d____(June 17, 2012), is an important case. The employer unilaterally imposed more stringent dual employment standards for certain employees. Though not explained in the decision, these policies appear to have limited employee moonlighting. In upholding PERB's finding that an IP occurred, the Court explained:

It is well settled that "[t]he Taylor Law (Civil Service Law art 14) requires collective bargaining over all 'terms and conditions of employment'" (Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563[*3]572 [2006], quoting Civil Service Law § 204 [2]). Where a public employee alleges that a public employer has failed to negotiate the terms and conditions of employment — an improper employer practice (see Civil Service Law § 209-a [1] [d]), PERB has exclusive jurisdiction to resolve the dispute between the parties (see Civil Service Law § 205 [5] [d]; see also Matter of Zuckerman v Board of Educ. of City School Dist. of City of N.Y., 44 NY2d 336, 342 [1978]). We "have made clear that 'the presumption . . . that all terms and conditions of employment are subject to mandatory bargaining' cannot easily be overcome" (Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. 6 NY3d at 572, quoting Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73, 79 [2000]). However, "certain decisions of an employer, though not without impact upon its employees, may not be deemed mandatorily negotiable terms and conditions of employment[] . . . because they are inherently and fundamentally policy decisions relating to the primary mission of the public employer" (Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660, 669 [1990]; see also Matter of County of Erie v State of N.Y. Pub. Empl. Relations Bd., 12 NY3d 72, 78 [2009]).

Here, the NYCTA urges us to hold that its implementation of more stringent dual employment standards was mission-related and, therefore, not subject to collective bargaining. It is indisputable that the NYCTA's core mission is to provide a safe system of public transit (see Public Authorities Law §§ 1202 [1], 1204 [15]). Although we need not "defer to PERB's judgment" (Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc., 6 NY3d at 575) on whether an employer's unilateral policy decision relates to its primary mission, the record in this case is inadequate to support the NYCTA's argument that the dual employment standards at issue were in furtherance of its core mission of public safety. As noted earlier, the NYCTA did not rely on particular safety studies when it imposed these new standards. Moreover, the NYCTA did not explain why it chose to impose the more restrictive dual employment standards on certain safety-sensitive employees — train conductors, train operators and tower operators — while exempting others — bus operators and train dispatchers — who share similar job functions. Simply put, on the limited record before us, there is an insufficient basis to disturb PERB's determination.

Mitchell H. Rubinstein


June 10, 2012 in New York Law, Public Sector Labor Law | Permalink | Comments (0)

Sunday, June 3, 2012

NY Appellate Court Holds That Accusing Someone of Being Gay Is No Longer Defamation Per Se

Yonaty v. Mincolla, ____A.D.3d___(3d Dep't. May 31, 2012), is an exceedingly important case that has not gotten much press. The case was a defamation action and the legal issue was whether or not falsing accusing someone as being gay is defamation per se. This is important because if it is slander per se, then plaintiff has to allege special damages. 

Here the court refused to follow 30 year old precedent from another Department which held that making such a false accusation was indeed slander per se. As the court explained:

In regard to New York in particular, we locate "the public policy of [this] state in the law as expressed in statute and judicial decision and also [by] consider[ing] the prevailing attitudes of the community" (Debra H. v Janice R., 14 NY3d 576, 600 [2010], cert denied ___ US ___, 131 S Ct 908 [2011] [internal quotation marks and citations omitted]; see Dickerson v Thompson, 73 AD3d 52, 54 [2010]). Rather than countenancing the view that homosexuality is disgraceful, the Human Rights Law, since 2002, has expressly prohibited discrimination based on sexual orientation in employment, public accommodations, credit, education and housing (Executive Law § 296). Most revealing of the respect that the people of this state currently extend to lesbians, gays and bisexuals, the Legislature passed the Marriage Equality Act (Domestic Relations Law § 10-a, as amended by L 2011, ch 95, § 3) in June 2011, which was strongly supported by the Governor and gave same-sex couples the right to marry in New York, thereby granting them all the benefits of marriage, including "the symbolic benefit, or moral satisfaction, of seeing their relationships recognized by the State" (Hernandez v Robles, 7 NY3d 338, 358 [2006]). Even prior to the Marriage Equality Act, this Court had previously explained that "the public policy of our state protects same-sex couples in a myriad of ways" — including numerous statutory benefits and judicial decisions expressing a policy of acceptance (Dickerson v Thompson, 78 AD3d at 54). Similarly "evidenc[ing] a clear commitment to respect, uphold and protect parties to same-sex relationships[,] executive and local orders extend[] recognition to same-sex couples and grant[] benefits accordingly" (id.see Godfrey v Spano, 13 NY3d 358, 380-381 [2009] [Ciparick, J., concurring] [detailing the many statutes and court decisions reflecting a public policy of acceptance of lesbians, gays and bisexuals]).

We note that the most recent Appellate Division decision considering the issue in depth was decided nearly 30 years ago (Matherson v Marchello, 100 AD2d 233, 241-242 [2d Dept 1984], supra). In that case, the Second Department concluded that it was "constrained . . . at this point in time" to hold that a statement imputing homosexuality was defamatory per se in light of the then-existing "social opprobrium of homosexuality" and "[l]egal sanctions imposed upon homosexuals in areas ranging from immigration to military service" (id. at 241 [emphasis added]). Ultimately, the Court held that "the potential and probable harm of a false charge of homosexuality, in terms of social and economic impact, cannot be ignored" (id. at 242). In light of the tremendous evolution in social attitudes regarding homosexuality, the elimination of the legal sanctions that troubled the Second Department in 1984 and the considerable legal protection and respect that the law of this state now accords lesbians, gays and bisexuals, it cannot be said that current public opinion supports a rule that would equate statements imputing homosexuality with accusations of serious criminal conduct or insinuations that an individual has a loathsome disease (see Stern v Cosby, 645 F Supp 2d 258, 273-275 [SD NY 2009];Albright v Morton, 321 F Supp 2d 130, 136-139 [D Mass 2004], affd on other grounds 410 F3d 69 [2005]; [*5]Donovan v Fiumara, 114 NC App 524, 528-531, 442 SE2d 572, 575-577 [1994]; Hayes v Smith, 832 P2d 1022, 1023-1025 [Colo 1991]; Boehm v Bankers Ins. Group, Inc., 557 So 2d 91, 94 and n 1 [Fla 1990], review denied 564 So 2d 1085 [Fla 1990]; but see Gallo v Alitalia-Linee Aeree Italiane-Societa per Azioni, 585 F Supp 2d 520, 549-550 [2008] [relying, in part, on our decision in Tourge v City of Albany (285 AD2d 785 [2001], supra) in concluding that statements imputing homosexuality remain slanderous per se under New York law]). While lesbians, gays and bisexuals have historically faced discrimination and such prejudice has not been completely eradicated, "the fact of such prejudice on the part of some does not warrant a judicial holding that gays and lesbians [and bisexuals], merely because of their sexual orientation, belong in the same class as criminals" (Stern v Cosby, 645 F Supp 2d, at 275).

Mitchell H. Rubinstein

June 3, 2012 in Discrimination Law, Law Review Ideas, Litigation, New York Law | Permalink | Comments (0)

Tuesday, May 8, 2012

NY Court of Appeals Issues Major Employment-At-Will Decision

In Sullivan v. Harnisch, ____N.Y.3d____(May 8, 2012), the New York Court of Appeals once again refused to recognize a cause of action for wrongful discharge and refused to make an exception for a compliance officer of a hedge fund. A compliance officer alleged that he was terminated because he "spoke out" about "manupulative and deceptive trading practices." The plaintiff tried to allege that the exception to the employment at will doctrine recognized in Wieder v. Skala, 80 N.Y. 2d 628 (1992) should apply. In rejecting this, the Court distinguished Wieder, reasoning in part:

Important as regulatory compliance is, it cannot be said of Sullivan, as we said of the plaintiff in Wieder, that his regulatory and ethical obligations and his duties as an employee "were so closely linked as to be incapable of separation" (Wieder, 80 NY2d at 635). Sullivan was not associated with other compliance officers in a firm where all were subject to self-regulation as members of a common profession. Indeed, Sullivan was not even a full-time compliance officer. He had four other titles at Peconic, including Executive Vice President and Chief Operating Officer, and was, according to his claim, a 15% partner in the business. It is simply not true that regulatory compliance, in the words of Wieder, "was at the very core and, indeed, the only purpose" of Sullivan's employment. 

The case generated a strong two Judge dissent by Chief Judge Lippman where the Chief Judge stated:

In the wake of the devastation caused by fraudulent financial schemes — such as the Madoff ponzi operation, infamous for many reasons including the length of time during which it continued undetected — the courts can ill afford to turn a blind eye to the potential for abuses that may be committed by unscrupulous financial services companies in violation of the public trust and the law. In the absence of conscientious efforts by those insiders entrusted to report and prevent such abuses of investors, such behavior can run rampant until a third party outside the company discovers it and takes action. The message that will be taken from the majority's decision is self-evident: if compliance officers (and others similarly situated) wish to keep their jobs, they should keep their heads down and ignore good-faith suspicions or evidence they may have that their employers have engaged in illegal and unethical behavior, even where such violations could cause or have caused staggering losses to their employers' clients. The majority's conclusion that an investment adviser like defendant Peconic has every right to fire its compliance officer, simply for doing his job, flies in the face of what we have learned from the Madoff debacle, runs counter to the letter and spirit of this Court's precedent, and facilitates the perpetration of frauds on the public.

Because the majority unduly narrows the scope of a purposefully and carefully crafted exception to the doctrine of at-will employment, and unfathomably permits the termination of a hedge fund's chief and deputy chief compliance officers in the midst of their investigation of the CEO's allegedly "manipulative and deceptive trade practices that include[d]illegal 'front-running' in violation of federal and state securities laws,"I respectfully dissent.

Mitchell H. Rubinstein


May 8, 2012 in Employment Law, New York Law | Permalink | Comments (0)

Sunday, April 15, 2012

New York Appellate Court Issues Major Employment At Will Decision and Essentially Implies Public Policy Exception

Villarin v. Rabbi Haskel Lookstein School, 2012 NY Slip Op. 02786 (1st Dept. April 12, 2012), is a significant case. 

New York is one of the most conservative employment at will states. The Legislature enacted Labor Law Section 740 to protect whisleblowers, but it has been interpreted very narrowly by courts to require an ACTUAL violation of law Bordell v. GE, 88 NY 2d 869 (1996) AND illegal activity that creates a substanal and specific danger to public health. The reporting of fraud and religious harassment of an individual has been held not to be within the protection of this statute. Leibowitz v. Bank Leumi, 152 A.D. 2d 169 (2d Dep't. 1989). 

Villarin is significant because the majority holds that a school nurse at a private school is protected from being terminated because she reported child abuse. What is sigificant about this case is that the alleged abuse only concered one student. A two judge dissent felt that because the public policy did not involve a wider issue applicable to public health in general,(because only one student was involved), that this statute was not applicable.

Since two judges dissented, under New York law, this case can be appealed to the New York Court of Appeals as a matter of right. If the decision stands, like it unquestionably should, New York would essentially be recognizing a public policy exception to the employment at will doctrine at least where an actual violation of law occurred because every case would involve at least a single individual. 

Stay tunned. 


April 15, 2012 in Employment-At-Will & Exceptions, Law Review Ideas, New York Law | Permalink | Comments (0)

Sunday, March 4, 2012

The Doctrine of Res Judicata bars relitigating the same issues earlier decided by another tribunal


Matter of Finkel v New York City Housing Authority, 2011 NY Slip Op 07914, Appellate Division, First Department

Affirming State Supreme Court’s dismissing Finkel’s Article 78 proceeding seeking to annul a 2010 New York State Division of Human Rights' determination dismissing his complaint for lack of jurisdiction, the Appellate Division said that the complaint filed with New York State Division of Human Rights was barred under the doctrine of res judicata because they were based on the same complaints filed by Finkel in federal court in 1990 and 1991, which claims were decided by the federal court on the merits.
Addressing another issue, the timeliness of the 2010 action, the court said it disagreed with Finkel’s claim that the Lilly Ledbetter Fair Pay Act of 2009 (the Fair Pay Act) applied to payments made pursuant to a pension structure.
The Appellate Division said that the language of the statute itself provides that "[n]othing in this Act is intended to change current law treatment of when pension distributions are considered paid," citing Public Law 111-2, §2[4]. Accordingly, said the court, "[t]he [Fair Pay] Act preserves the existing law concerning when a discriminatory pension distribution or payment occurs, i.e., upon retirement, not upon the issuance of each check."
As Finkel began receiving his retirement compensation in 1996, the Appellate Division concluded that the Fair Pay Act did not "reset" the statute of limitations for the claims related to his employer’s failure to pay Finkel back wages as ordered in a prior action, or with respect to any of the other claims.
Reprinted with permission New York Public  Personnel Law
Mitchell H. Rubinstein


March 4, 2012 in New York Law | Permalink | Comments (0)

Saturday, February 18, 2012

Evidence obtained using a global positioning device [GPS] permitted in administrative disciplinary hearing


Matter of Matter of Cunningham v New York State Dept. of Labor, 2011 NY Slip Op 08529, Appellate Division, Third Department
Michael A. Cunningham, an employee of the New York State Department of Labor, was served with disciplinary charges alleging that he had reported false information about hours he had worked on many days and that he had submitted false vouchers related to travel with his vehicle. The disciplinary hearing officer found Cunningham guilty of certain charges and recommend that Cunningham be dismissed from his position. The Commissioner of Labor accepted the hearing officer's findings and recommended penalty and terminated Cunningham from service.
In the course of an investigation which resulted in the disciplinary charges being filed against Cunningham, the State’s Office of the Inspector General used a global positioning system (GPS) device placed on Cunningham’s vehicle and the resulting information was used in the course of Cunningham’s disciplinary hearing as evidence to prove charges that he had reported false information and submitted false vouchers related to his travel using his personal vehicle.*
Cunningham, contending that the GPS devices placed on his car without a warrant constituted an illegal search and seizure under the NY Constitution, appealed and argued that all such information should have been excluded from evidence at the administrative hearing.
One of the significant issues before the Appellate Division was Cunningham’s challenging the GPS evidence used in the disciplinary action. Essentially the Appellate Division had to determine if the admission of evidence obtained through the use of the GPS to prove certain of the disciplinary charges was unduly prejudicial to Cunningham.
The Appellate Division noted that in a case decided after OIG had concluded its investigation of Cunningham, a majority in the Court of Appeals held that, within the context of a criminal investigation, "[u]nder our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause" (People v Weaver, 12 NY3d 433 [2009]).
Concluding that although the GPS evidence gathered in the course of the OIG investigation would have likely been excluded from a criminal trial under Weaver, the Appellate Division said that the standard for using or excluding evidence at administrative proceedings is not controlled by criminal law, citing McCormick, Evidence §173 [6th ed] [supp], in which it was observed that “most courts do not apply the exclusionary rule to various administrative proceedings including employee disciplinary matters”.
The court said that the test applied in a search conducted by a public employer investigating work-related misconduct of one of its employees is whether the search was reasonable “under all the circumstances, both as to the inception and scope of the intrusion.”
Similarly, said the court, when the search was “conducted by an entity other than the administrative body” seeking to use the evidence in a disciplinary proceeding, the rule is applied by "balancing the deterrent effect of exclusion against its detrimental impact on the process of determining the truth."
As in this instance the investigation was refer to the OIG. Under such facts, said the court, “the reasonableness test appears applicable.”
The court concluded that in order to establish a pattern of serious misconduct such as repeatedly submitting false time records in contrast to a mere isolated incident, it was necessary to obtain pertinent and credible information over a period of time. Here the Appellate Division ruled that “obtaining such information for one month using a GPS device was not unreasonable in the context of a noncriminal proceeding involving a high-level state employee with a history of discipline problems who had recently thwarted efforts to follow him in his nonworking-related ventures during work hours.”
Under the circumstances the Appellate Division said that neither OIG nor Department of Labor had acted unreasonably.

* See, also, Matter of Halpin v Klein, 62 AD3d 403. In Halpin the employee was found guilty of disciplinary charges involving absence from work based on records generated by global positioning equipment. Halpin's guilt was established using data from the global positioning system (GPS) installed in his Department-issued cell phone. The Halpin decision is posted on the Internet at:

The Cunningham decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein


February 18, 2012 in New York Law, Public Sector Employment Law | Permalink | Comments (1)