New York Mandatory Retirement for Police - DOC

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                      MANAGEMENT RIGHTS
             A Labor Relations newsletter for clients of ROEMER WALLENS & MINEAUX LLP designed
             to provide relevant information to public sector managers on matters relating to
                               the labor relations environment in government.

                                                  Summer 2009

COBRA AND INVOLUNTARY                                     LEAVE FOR CANCER SCREENING
                                                          In the Fall 2006 issue of Management Rights we
The American Recovery and Reinvestment Act of             reported on a County’s obligation to provide leave to
2009 (“ARRA”, also known as the Federal Stimulus          an employee who was undertaking cancer screening
Package) provides for a temporary reduction in            (breast or prostate cancer screening); the law
COBRA premium payments for eligible individuals.          indicated that the employer was to allow the leave
As you know, COBRA permits those who would                and was prohibited from charging leave accruals; the
otherwise lose employer-provided health insurance         statute was unclear as to whether the leave time had
with the option to continue to receive employer           to be leave with pay.
provided health insurance benefits for a statutory time
period provided certain payments are made toward          The State Legislature has amended Sections 159-b
the cost of the health insurance premiums. COBRA          and 159-c of the Civil Service Law to require all
eligible individuals who, because of their own or a       municipalities and school districts (including
family member’s “involuntary termination” from            BOCES) to provide to an employee a “paid leave of
employment between September 1, 2008 through              absence from his or her duties . . . for a sufficient
December 31, 2009, and who elect COBRA, will              period of time, not to exceed four hours on an annual
only pay 35% of the full COBRA premium (for up to         basis, to undertaking[such] screening” (emphasis
9 months) with the employer picking up the                added). The leave is paid leave and the time cannot
remaining 65%. The employer may recover this 65%          be charged to any leave accruals (Ch. 391.L. 2008).
“by taking the [federal] subsidy amount as a credit on
its quarterly employment tax return (see                  IDENTITY THEFT and click on “Compliance
Assistance” and under the heading “What’s New”            The New York State Public Officers Law has been
access “FAQs for Employers About COBRA                    amended to help protect employees of state and local
Premium Reduction Under ARRA” – then under Q4             government from identify theft. Section 96-a which
click onto the link to “IRS Guidance”).                   will go into effect on January 1, 2010, places certain
                                                          prohibitions upon the use of an employee’s social
The FAQs tell us that there are many considerations       security number (SSN). To the extent that you are
as to what constitutes “involuntary termination” and      not already using an identification system other than
we advise that all employers review the criteria          that by SSN, beginning in 2010, a change will need
before offering the COBRA option to a former              to be enacted.
employee. IRS Notice 2009-27 explains that if the
Employer terminates an employee following                 The law prohibits, unless otherwise required by state
disciplinary charges, that employee is not deemed to      or federal law:
be “involuntarily terminated” for purposes of this
COBRA benefit (termination for “gross misconduct”;        (1) intentional communication or availability to the
Q. 6 @ A-6 pp. 6-7).                                      general public of an employee’s SSN; (2) printing
                                                          of the employee’s SSN on “any card or tag required
                                                          for the [employee] to access products, services or
                                                          benefits provided by the employer”; (3) requiring an
                                                          employee to transmit his/her SSN over the internet
(unless the site is deemed to be “secure”); (4)           February 19, 2009 ruling, the Court overturned
requiring an employee to use his/her SSN as a             PERB’s determination finding PERB to have
method to access the internet unless “a password or       exceeded its statutory authority. The Court’s
unique personal identification number is also             holding is most instructive:
required…”; (5) including an employee’s SSN
(“except the last four digits) on a mailing (hard copy           The Court does not deny that
or electronic) to the employee except as part of the             prehearing disclosure would be
employment application process (see Ch. 279, L.                  helpful to union representation of
2008).                                                           employees at disciplinary hearings,
                                                                 but finds that it is not essential to
POLICE AND FIRE: EXTENSION OF                                    that representation. The present
MANDATORY RETIREMENT AGE                                         procedure     of     allowing    [the
                                                                 Employer] to voluntarily release
Section 384-d of the Retirement and Social Security              documents and for the hearing
Law (RSSL) established the 20-year retirement plan               officer to make determinations
for those in the police and fire service. Effective              whether further material is relevant
immediately, the mandatory retirement age specified              and should be released is sufficient
in the law has changed from age 62 to 65. When an                to meet due process and provides an
employee is receiving the benefits of GML §207-c                 adequate administrative process. If
(police) or §207-a (firefighters), the municipality has          the employee is not satisfied with
the right, pursuant to the legislatively created                 the hearing officer’s decision, then
mandatory retirement age, to remove a GML                        that decision may be appealed
recipient from GML status upon the individual                    administratively, and the final
attaining the mandatory age of retirement (see GML               administrative decision may be
§207-a.4 and GML §207-c.5). In order to ensure that              challenged in court.
GML recipients were not, by virtue of this newly                             *     *      *
enacted law, given three more years of full pay, the             The Court agrees with [the
legislation specifically states that:                            Employer] that PERB is creating an
                                                                 alternate system for obtaining
        To be eligible to remain on payroll                      discovery that would destroy a
        under this Section [384-d] after                         fundamental attribute of the
        attaining the age of sixty-two, such                     summary disciplinary proceedings,
        [employee] must be capable of                            its speedy resolution of the merits
        performing the duties of their                           by cutting the hearing officer out of
        position.                                                the process by allowing the union to
                                                                 apply to PERB for discovery based
(Section 384-d RSSL, as amended; Ch. 585, L. 2008).              on an improper practice claim. This
                                                                 approach not only would delay the
The provisions of this bill/law apply as well to those           disciplinary process but makes it
enrolled in Plan 384-e, RSSL.                                    likely that the two systems will
                                                                 reach different results and require
                                                                 further proceedings to resolve those
DISCLOSURE DEMAND UPDATE                                         differences.

                                                          [Decision/Order of JSC Eugene P. Devine; Index
In the Summer 2008 issue of Management Rights
                                                          No.: 5324-08; February 19, 2009.]
(“Union Data Request”) we reported about a PERB
case (Unified Court System, PERB Case No.: U-
27031) which held that a union’s data request made        REMINDER: The NYSPELRA Annual Training
in conjunction with a disciplinary proceeding had to      Conference is scheduled for July 27 to July 29, 2009
be honored by the Employer. In essence, PERB had          in Saratoga Springs. Registration is now being
created pre-hearing discovery where none was              accepted. Contact Jack Kalinkewicz at 518-885-
provided for in a negotiated contract or state law.       2225 (or for more
The matter was appealed by the Unified Court              information or access information via the web at
System to the Albany County Supreme Court. In its

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