Monday, October 06, 2008

Civil Service Law on layoff procedure

Sent from TAGNYC

Teachers, Counselors, and Other School Based UFT Personnel:

The fiscal crises may, again may, result in a call for a layoff of personnel. ATRs and persons reassigned question how they would be affected in a layoff. We all know Bloomberg-Klein want to rid the system of the ATRs and the people in the Reassignment Centers.

Below is the URL and the analysis of the Civil Service Law of the State of New York regarding layoff procedure.


August 17, 2008
Layoffs Under New York Civil Service Law
Layoff considerations
Civil Service Law Sections 80 and 81-A; Education Law Sections 2510; 3013

The financial difficulties faced by the State and its political subdivisions has generated concern that public employers may have to abolish jobs resulting in layoffs.
Both the Civil Service Law and the Education Law contain provisions dealing with layoff. Essentially, employees are to be laid off in the inverse order of their permanent appointment. Errors in making determinations concerning “seniority” for the purposes of layoff are costly as the redress in such cases is the payment of back salary and benefits to the individual unlawfully laid off from his or her position.

For example, with respect to the State as an employer, the classified service the date of the individual’s “original appointment” to a position on a permanent basis controls, regardless of the fact that the individual was originally appointed a different the position from which he or she is laid off is in the competitive class [see CSL Section 80] or the noncompetitive class [see CSL Section 81].

In contrast, the Education Law provides that in the event “a board of education abolishes a position the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.” This element – seniority – cannot be diminished or impaired by the terms of collective bargaining agreement as demonstrated by City of Plattsburgh v Local 788, 108 AD2d 1045. In Plattsburgh the issue concerned the application of a Taylor Law contract provision dealing with seniority in a layoff situation.

The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date used to determine an individual's service for seniority purposes for layoff under State law, i.e., the individual's date of permanent appointment in public service.

For example, assume Employee A was provisionally appointed on January 1, and Employee B was appointed February 1, of the same year. Employee B, however, was permanently appointed on March 1 of the same year, while Employee A was permanently appointed a month later, on April 1. Under the contract A would have greater seniority for layoff purposes than B. But Sections 80 and 80-a of the Civil Service Law provides that the date of an individual's most recent, uninterrupted "permanent appointment" determines his or her seniority for the purposes of layoff and so, under the law, B would have greater seniority than A.

This was the problem in the Plattsburgh case. The City laid off Mousseau rather than another worker, Racine. While Mousseau, had been employed by the City for a longer period than Racine, Racine had received his permanent appointment before Mousseau was permanently appointed.

The Union grieved, contending that under the seniority provision in the collective bargaining agreement, Racine should have been laid off. The City, on the other hand, argued that Section 80 controlled and thus Mousseau, rather than Racine, had to be laid off first. Plattsburgh won an order prohibiting arbitration. The Court said that Section 80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.

As the Court of Appeals said in County of Chautauqua v. Civil Service Employees Ass'n, 8 N.Y.3d 513, “Once such an informed decision as to which positions are to be [abolished] is made, Section 80 (1) obligates the employer to respect the seniority rights of its employees."

Similarly, in Szumigala v Hicksville Union Free School District, 539 NYS2d 83, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated Section 2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.

Another element to consider is “continuous service.” Sections 80.2 and 80-A.2 of the Civil Service Law set out the effect, or lack thereof, of “interruptions in service” in the event of resignation followed by a reinstatement; appointment to a position in the unclassified service and other types of absences or leaves.

Among the many other factors to consider in layoff situations are the following:
The Attorney General has concluded that there must be an actual, official abolishment of a position in order to lawfully remove an employee from his or her position pursuant to these sections (1976 Opinions of the Attorney General 7).

Once it is decided which competitive class positions [and with respect to the State as an employer, positions in the noncompetitive class] in a layoff unit are to be abolished, two factors control for the purposes determining the individual or individuals to be laid off: the employee's tenure status [i.e., the permanent, contingent permanent, temporary, or provisional status of the worker] and his or her seniority.

Layoff units must be considered as well. Among the elements that complicate the determination of the specific individual or individuals to be suspended or displaced as a result of a layoff are (1) the identification of the specific layoff unit(s) for layoff purposes and (2) the employee's decision with respect to exercising any "displacement," "bumping" or "retreat" rights within that layoff unit that he or she may have. With respect to the State as an employer, layoff units are set out in the Rules of the State Civil Service Commission [see 4 NYCRR 72].

Military service may be a factor in determining seniority as well. A veteran who served in time of war may be entitled to have his or her "seniority date" adjusted for the purposes of layoff [Section 85, Civil Service Law]. Five years of service are added to an eligible disabled veteran's original date of permanent appointment; 2 years of service credit is added in the case of non-disabled veterans. Also, the spouse of a 100% disabled veteran may be eligible for five years of "additional" service credit in layoff situations if he or she meets the requirements set out in Section 85.7 of the Civil Service Law.

A blind employee is entitled to absolute preference in retention in cases of layoff.
Another aspect that may prove important in some situations involves determining Sections 80 or 80-a seniority for individuals who attained permanent status with a public employer as a result of a "takeover" of a private institution or enterprise by a governmental employer pursuant to Section 45 of the Civil Service Law or a similar law. Such employees may have two seniority dates and it may be necessary to consider both when determining their retention rights in a layoff.

One is their date of seniority with respect to other public employees generally, usually determined on the basis of the date of the takeover. The second is the date of their seniority with respect to their coworkers at the private enterprise at the time of the takeover. Typically such "dual seniority" rights flow from legislation that may have been adopted in connection with the takeover.

Reprinted with permission from New York Public Personnel Blog. For subscription information contact Mention Adjunct Prof Blog for a free extended 45 day trial.
Mitchell H. Rubinstein

August 17, 2008 in Public Sector Employment Law

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