This past Labor Day, Governor Cuomo signed legislation which requires all New York State public employers to adopt a plan for operations in the event of a declared public health emergency involving a communicable disease. The new legislation will constitute New York State Labor Law Section 27-c, and clearly serves as a political response to the effects of the sudden onset of the COVID-19 pandemic this past Spring. Such a plan must be finalized and published by April 1, 2021.
Earlier this week, in response to a nationwide outcry for police reform, the New York Legislature repealed Civil Rights Law § 50-a, a decades-old statute that largely prohibited the disclosure of police disciplinary records. The justification included the following: “Repeal of § 50-a will help the public regain trust that law enforcement officers and agencies may be held accountable for misconduct.” Governor Cuomo has now signed the new legislation, which takes effect immediately.
On December 11, 2018, the New York Court of Appeals issued a decision (over two dissenting opinions) addressing public access to police personnel and disciplinary records. The Court held that certain personnel records sought by the New York City Civil Liberties Union (“NYCLU”) pursuant to the Freedom of Information Law (“FOIL”) are exempt from disclosure under New York Civil Rights Law § 50-a and New York Public Officers Law § 87(2)(a). In doing so, the Court affirmed the decision of the Appellate Division, First Department, and the broad applicability of Civil Rights Law § 50-a to requests for police personnel/disciplinary records.
On September 7, 2018, Governor Cuomo signed legislation that amended Civil Service Law Section 75. Pursuant to the amendments, Section 75 now extends hearing rights (i.e., the right to written disciplinary charges and a hearing before imposition of a reprimand, fine, suspension without pay, demotion or termination) to “Labor Class” employees after five years of continuous service. This is the same protection that has previously been afforded to employees in the Non-Competitive Class after five years of continuous service and employees in the Competitive Class immediately upon permanent appointment. Prior to this amendment, Labor Class employees had no such protections unless they were veterans or exempt volunteer firefighters. The amended law is effective immediately. If you are a public employer and have any Labor Class employees who have completed five years of continuous service, they are now protected pursuant to Section 75.
On June 27, 2018, the Supreme Court struck down mandatory “agency” or “fair share” fees for public sector employees who decline to become union members. In the decision, Janus v. AFSCME, the Court held that an Illinois statute compelling public employees who choose not to be members of a union to pay agency fees to the union that represents them violates the First Amendment, because it requires those employees to financially support an organization which they did not join voluntarily and whose ideas and speech they may disagree with.
Mark Janus, an Illinois child welfare worker, decided not to join the American Federation of State, County, and Municipal Employees -- the union that represents his public sector co-workers. Under Illinois law, however, Janus is still required to pay fees to the union. These fees are known as “fair-share” fees, a label which refers to the Illinois law requiring the union to “fairly” represent Janus and all of his co-workers, whether or not they are union members. For this representation, non-union members like Janus must pay a “fair-share” fee,” which is approximately 78 percent of the full union dues, and in Janus’ case, amounts to $23.48 per pay period.
Janus has objected to the payment of this fee, and his case has reached the United States Supreme Court. A ruling by the Court in Janus v. AFSCME will be released very soon, and that ruling is expected to strike down the Illinois “fair share” law and similar state laws (including the law in New York) because they violate the United States Constitution.
On December 18, 2017, Governor Cuomo signed legislation that amended Civil Service Law Sections 159-b and 159-c. Currently, those sections entitle most public sector employees to take up to four hours of paid leave per year to be screened for breast cancer (159-b) and up to four hours of paid leave per year to be screened for prostate cancer (159-c), without deducting any leave time (e.g., sick, personal, or vacation) from the employee.
Effective March 18, 2018, Civil Service Law Section 159-b will be amended by broadening the scope of that provision so that it will apply to all cancer screenings. Because Section 159-b will now apply to all types of cancer screenings (including screenings for prostate cancer), Civil Service Law Section 159-c (relating to prostate cancer screenings) will be repealed.
Public employers should review their policies to ensure that employees are permitted to take up to a maximum of four hours of paid leave per year for any type of cancer screening, without deducting any other leave time (e.g., sick, personal, or vacation) from the employee.
Municipal police employers who thought that their payment of benefits to injured police officers under General Municipal Law Section 207-c shielded them from tort claims brought by those injured officers need to think again.
Some municipal police employers, particularly larger ones, opt not to carry workers’ compensation coverage. Such coverage is costly. Moreover, there was a thought that Section 207-c, which provides injured officers with payment of full (tax free) salary during their absence from work and covers the cost of their medical treatment and health care, was an injured officer’s exclusive remedy against his/her employer and shielded the employer from lawsuits filed by its police employees. Until recently, that belief had the support of multiple state appellate court decisions. For example, in Nieves v. City of Yonkers, the Appellate Division, Second Department, held that an officer, having received Section 207-c benefits, could not assert a tort claim against his employer. Similarly, in Damiani v. City of Buffalo, the Appellate Division, Fourth Department, held that an officer’s right to the receipt of Section 207-c benefits was the exclusive remedy for injuries caused by a fellow officer.
However, the recent New York Court of Appeals holding in Diegelman v. City of Buffalo dispels that notion. In that case, the Court of Appeals held that “where the municipal employer has elected not to provide coverage pursuant to the Workers’ Compensation Law, a police officer who suffers a line-of-duty injury caused by the employer’s statutory or regulatory violations may pursue a section 205-e claim.” In reaching its decision, the Court evaluated the interplay between Section 207-c, General Municipal Law Section 205-e, and the Workers' Compensation Law. Section 205-e allows police officers to bring tort claims for line-of-duty injuries in certain delineated instances. Conversely, the Workers’ Compensation Law completely precludes an employee from pursuing a tort claim against his employer for injuries sustained in the course of employment.
The Diegelman majority reasoned that while the language in Section 205-e precludes a tort action by recipients of workers’ compensation benefits, it makes no mention of Section 207-c, though it certainly could have if the legislature so intended. The majority also rejected the argument that because of the superior benefits provided by Section 207-c, it “is essentially a super workers’ compensation scheme for police officers.” Perhaps most tellingly, the majority also noted that prior judicial efforts to restrict the breadth of Section 205-e had all been met with legislative enactments abrogating those holdings.
Judge Pigott authored a dissenting opinion in which he noted that Section 205-e was intended as a cost-savings measure for the benefit of the municipal employer. In other words, it was intended to allow the injured officer to sue third parties while permitting the employer to file a lien and recoup its Section 207-c costs from that third party wrongdoer. Judge Pigott also questioned the logic of allowing an injured police officer who receives Section 207-c benefits to pursue a tort claim against his/her employer while precluding other employees who receive inferior benefits under the Workers’ Compensation Law from doing so.
Diegelman should serve as a wakeup call. Municipalities that do not provide workers’ compensation coverage for their police officers should engage in a renewed analysis and determine whether the costs and potential liability inherent in defending police officer tort claims outweigh the cost of securing and providing workers’ compensation coverage.
On March 29, 2016, the Supreme Court issued a one sentence opinion in the highly publicized case of Friedrichs v. California Teachers Association, stating “[t]he judgment is affirmed by an equally divided Court.” This outcome was not unexpected after the death of Supreme Court Justice Antonin Scalia left the Supreme Court with eight remaining Justices. This split decision means that public sector agency shop fees are still lawful, and that state statutes authorizing agency shop fee arrangements (including New York's Taylor Law) remain constitutional.
Although the Supreme Court has issued an opinion, it seems that this case is far from over. In a press release issued on the day of the decision, the President of the Center for Individual Rights (the public interest law firm that originally brought the case on behalf of the petitioners), Terry Pell, stated, “We believe this case is too significant to let a split decision stand and we will file a petition for re-hearing with the Supreme Court.” Considering the significance of this issue, it appears likely that a petition for re-hearing will be granted once another Supreme Court Justice is appointed and confirmed.
As we reported in a prior blog post, there is a case currently in front of the U.S. Supreme Court (Friedrichs v. California Teachers Association) in which the mandatory payment of union agency shop fees by public sector employees is being challenged as unconstitutional. Oral argument in the case was heard by the Supreme Court on January 11, 2016. On February 13, 2016, Supreme Court Justice Antonin Scalia passed away. What is the likely impact of Justice Scalia's death on the outcome of this case? It was anticipated that based upon the questions posed during oral argument that the justices would likely find in favor of the petitioners by a ruling of 5-4, with Justice Scalia being one of the five justices holding that union agency shop fees in the public sector are unconstitutional. Justice Scalia’s predicted opinion on the issue was evidenced by the following discussion with the petitioners' counsel during the oral argument regarding whether it would even be permissible to require someone to contribute to a cause that he or she does believe in, let alone a cause that he or she does not wish to support: Justice Scalia: Mr. Carvin, is -- is it okay to force somebody to contribute to a cause that he does believe in? Mr. Carvin: I wouldn’t think, Your Honor, that you could force Republicans to give contributions. Justice Scalia: Yes. That’s -- that's what I’m thinking. Could you enact a law? Let’s say the national political parties are in trouble so they enact a law that says all -- all members of the Republican party, if you want to be a member you have to contribute so much money. Mr. Carvin: No. Justice Scalia: Is that okay? Mr. Carvin: No, it’s not, and that’s because the bedrock principle, as Harris made clear, is not whether or not you vividly oppose what they’re saying -- Justice Scalia: Right. Mr. Carvin: -- it's because you don't wish to subsidize it. Justice Scalia: Exactly. So I don't know why you're putting so much emphasis on the fact that your -- your clients oppose. It really wouldn't matter, would it? Mr. Carvin: No. The death of Justice Scalia leaves eight Supreme Court justices, which could result in a 4-4 tie in one of the closest cases of this term. Many political commentators believe it is unlikely that another Supreme Court justice will be appointed before June decisions are published by the Court. In the event that there is a 4-4 tie, the lower court decision stands. In Friedrichs, the lower court decision of the Ninth Circuit affirmed the district court’s finding in favor of the union. Therefore, a 4-4 tie would mean that union agency shop fees in the public sector would remain constitutional, at least for now. If this occurs, the petitioners' counsel has already announced that they intend to seek a rehearing next term by the full Court.
On December 28, 2015, Governor Cuomo signed a bill repealing Civil Service Law § 75-b(2)(b). This has a significant effect on the anti-retaliation provisions of New York’s “whistle blower” protection statute for public employees who report to a governmental body either (a) violations of a law, rule or regulation, or (b) something which an employee reasonably believes to be “improper governmental action."
Civil Service Law § 75-b protects public employees who are whistle blowers against retaliation by public employers (which includes the State of New York, counties, cities, towns, villages, and school districts). As originally enacted, § 75-b(2)(b) (now repealed) required that a public employee, in order to invoke the anti-retaliation protection, first “shall have made a good faith effort to provide the appointing authority or his or her designee the information to be disclosed and shall provide the appointing authority or designee a reasonable time to take appropriate action unless there is imminent and serious danger to public health or safety.”
With the repeal, there now appears to be no requirement that the employee report the issue internally before taking it to another governmental body. While no doubt well-intentioned, the repeal may very well empower disgruntled employees to pepper regulatory and criminal authorities with complaints of alleged misconduct.
In addition to the fact that public employers should generally be aware of this change, public employers should also examine and review their existing whistle blower policies to determine if any revisions should be made.
In the classic 1980's comedy "Say Anything," the iconic high school senior Lloyd Dobler articulates his career goals as follows: "I don't want to sell anything, buy anything, or process anything as a career. I don't want to sell anything bought or processed, or buy anything sold or processed, or process anything sold, bought, or processed, or repair anything sold, bought, or processed. You know, as a career, I don't want to do that." A cursory Google search reveals that this 25 year old quote still resonates with much affection. But what may be deemed a charming lack of ambition from a teenaged movie character can be the death knell of a First Amendment case brought by a plaintiff who turns this quote into a veritable workplace mantra. Take for example the recent case of Alves v. Board of Regents of the University System of Georgia. In Alves, five psychologists of the Georgia State University Counseling Center submitted a written memorandum to the Counseling Center's director and the director's supervisor, criticizing the director's leadership and management, which they claimed "created an unstable work environment" and prevented the staff from being effective in their work. The memorandum set forth five areas of concern, including deficiencies in management, witness tampering, and selective treatment of staff based on race. A short time later, the director implemented a reduction in force affecting all the staff psychologists, all but one of whom were signatories to the memorandum, and outsourced their services at allegedly lower costs. The five psychologists who had signed the memorandum filed a First Amendment retaliation suit, claiming that they were fired for the "speech" contained in the memorandum, which they contended was made by them as ordinary citizens on matters of public concern. The defendants moved for summary judgment dismissing the complaint, arguing that under the Supreme Court's decision in Garcetti v. Ceballos, the memorandum was written about matters of only personal interest pursuant to the plaintiffs' official duties as employees, rather than about matters of public concern. The lower court agreed with the defendants and dismissed the complaint, which resulted in an appeal to the Eleventh Circuit Court of Appeals. On appeal, the five psychologists employed a Dobleresque view of their job responsibilities, arguing that raising ethical issues and protesting alleged supervisory incompetence were simply not within the ordinary ambit of their job duties. In other words, according to the plaintiffs, their job was only to provide counseling services to students -- not to "process" or "repair" anything within the broader universe of their workplace. The Eleventh Circuit disagreed and affirmed the dismissal of the plaintiffs' complaint. The Court found that the plaintiffs' protests were in furtherance of their ability to perform their job responsibilities with the goal of ending perceived mismanagement. The Court determined that these were matters of personal interest rather than public concern, and therefore, were not protected by the First Amendment. The long and short of Alves and the cases that follow similar reasoning is that while a public employee may say anything in a lawsuit to try to limit their true job responsibilities, lack of ambition, whether real or feigned, is rewarded with applause only in the movies.
