Layoff, preferred lists and reinstatement of public employees of the State as an employer and employees of its political subdivisions and schools Source: The Anatomy of a Layoff by Harvey Randall, Esq., Municipal Lawyer, Summer 2009, Vol. 23, No. 2, published by the New York State Bar Association, One Elk Street, Albany, NY 12207 © 2009 New York State Bar Association. Reprinted with permission. The current fiscal pressures on municipal and school budgets have resulted in efforts to reduce expenditures. Reduction in the workforce is one of the several areas being considered by municipal administrators and the layoff of personnel often results. This article explores some of the factors that administrators, employees and employee organizations must consider that are triggered in a layoff situation. There are three basic elements to be determined in processing a layoff of personnel employed in the public service: 1. The positions to be abolished in the layoff unit or tenure area involved; 2. The personnel status of the individuals serving in the title of the position to be abolished and their "displacement," "bumping" or "retreat" rights, if any; and 3. The seniority of each individual for the purposes of the relevant layoff law, with due consideration to veteran's credit and other factors, if any, that might be available to the individual. When courts review the lawfulness of actions taken by a public employer in implementing a layoff of personnel, the fundamental question in the court's analysis of the legal issues involved is did the employee involved receive all the protections and benefits provided by statute, rule and collective bargaining agreement to which he or she was entitled? Courts typically view the appointing authority's failure to satisfy any one of the several relevant elements in executing a lawful layoff as a complete failure of the process and this will result the court granting the individual a remedy – typically reinstatement to his or her former position and back salary and related benefits. The appointing authority in the public sector is confronted with a number of issues when it decides to reduce its workforce, including making the determination as to which position or positions are to be abolished; the layoff unit involved, and with respect to a BOCES or a school district anticipating a layoff involving employees in the unclassified service, the tenure area of the positions to be abolished. . Perhaps the most critical element in this exercise is determining the "official" status and seniority of the individual or individuals in the layoff unit or tenure area in order to make correct decisions as to the specific individual to be "excessed" and typically this must be analyzed on a case-by-case basis. Further, is there is any inconsistency with respect to the "official" status of an individual in the classified service between the records of the employer and the records of the responsible civil service commission, the records of the commission control[i]. It may be helpful to review briefly the State's personnel system at this point as the lawfulness of the layoff of a particular individual is dependent on "making the correct personnel decision the first time." In New York State, one may be employed in either the private sector or the public sector. The public sector in New York has two components: the military service [ii] and the civil service. The civil service consists of the classified service and the unclassified service. The "classified service" comprises the bulk of "civil service employment" in New York State. Positions in the classified service are under the jurisdiction of either the State Civil Service Commission or a local Civil Service Commission or Personnel Officer. Positions in the civil service that are not under such jurisdiction are in the "unclassified service," which includes judges, elected officials, commissioners and teachers.[iii] Finally, the classified service is composed of four classes, known as jurisdictional classes: the competitive class, the noncompetitive class, the exempt class and the labor class.[iv] An individual's statutory layoff rights – whether in the classified service or the unclassified service — depend the nature of his or her appointment by the State or a political subdivision of the State. While municipalities typically have only employees in the classified service to consider when making layoff decisions, BOCES and school districts have staffs consisting of both employees in the unclassified service and employees in the classified service. The layoff provisions set out in the Civil Service Law apply to those individuals in the classified service while the layoff provisions set out in the Education Law control in layoffs involving BOCES and school district employees in the unclassified service. Layoff rights are a function of an individual's appointment status and the jurisdictional classification of the position in which the individual is serving. For example, provisional employees and temporary employees do not have the same layoff rights as are enjoyed by individuals having a permanent appointment to the title; a probationary employee's layoff rights are subordinate to those of an individual having tenure in the same title. Depending on circumstances, an individual may have employment status as a permanent, contingent permanent, temporary, substitute or provisional employee.[v] Another element that may cause some misunderstanding of the priorities in a layoff — the individual may have been appointed to what has been designated a "permanent position" or appointed to position designated a "temporary position." Individuals are sometimes under the impression that designating a position as "permanent" or "temporary" for budgetary purposes has an impact on determining an employee's rights under the Civil Service Law, the Education Law or a Taylor Law Agreement. Such is not the case. The designation of a position as a "permanent position" or as a "temporary position "is essentially a "budget concept" in terms of the expectations of continuation of the funding of the position and designating a position either "permanent" or "temporary" for budgetary purposes neither enhances nor diminishes the statutory and other layoff rights of the incumbent. Issues involving an individual's appointment status, tenure and seniority are critical elements in many lawsuits challenging an individual's layoff. Anyone involved in the layoff process must evaluate these elements, because an employee's layoff rights depend on his or her actual, i.e., statutory, appointment status and the actual jurisdictional classification of the position to which he or she has been appointed and the actual seniority to which he or she is entitled as a matter of law. The key word is "actual" because the failure of an employer to accurately identify the employee's statutory appointment status and seniority or the statutory jurisdictional classification of the individual's position does not affect the employee's legal and Taylor Law contract rights.[vi] If an individual is going to err deciding the layoff rights of an employee, it is likely to involve some confusion of status involving the three "P" words: permanent, probationer and provisional.[vii] For example, one element, status as a probationary employee, is sometimes misunderstood. Simply put, a probationary employee enjoys permanent status insofar as his or her layoff rights are concerned.[viii] While the layoff rights of employees during a probationary period are superior to those of temporary and provisional appointees, they are subordinate to the layoff rights vested in tenured employees, i.e., individuals that have already satisfactorily completed their probationary period and individuals holding a contingent permanent appointment that have completed their probationary period.[ix] To illustrate this concept, consider the following: The Civil Service Law states that for the purposes of layoff, a person's seniority is measured from his or her "original date of permanent appointment" to a position in the classified service. When is that? The answer is not the date the employee's probationary term (if any) ended. Rather, it is the day he or she was initially permanently appointed to the classified service position as a probationer. Temporary and provisional employees have no statutory layoff rights but may enjoy layoff rights pursuant to the terms of a collective bargaining agreement. However, the terms of the collective bargaining agreement may not adversely affect the statutory rights of an individual in the layoff unit or tenure area insofar as layoff is concerned. The employees entitled to layoff rights are those employees who are specifically granted such rights pursuant to state laws such as §§80 or 80-a of the Civil Service Law or §§2510, 2588 and 3013 of the Education Law or, with respect to those not entitled to statutory layoff rights, a contract layoff right negotiated in accordance with the Taylor Law, provided such contract rights do not adversely affect another individual's statutory layoff rights. The important thing to remember is that it is the individual's employment status and jurisdictional classification controls with respect to any rights or benefits he or she may enjoy or demand. Other considerations, such as an individual's, or an individual's spouse's, status as a veteran may also have an impact on an employee's rights. It bears repeating that in order to determine the rights of a particular individual, whether by statute or by contract, it is essential to first determine that individual's status in the personnel system of the State or a political subdivision of the State. The failure to make a correct determination with respect to an individual's status could result in a court ruling that the employee was unlawfully removed from the position and the appointing authority directed to reinstate the individual with back salary and benefits. Essentially, officers and employees are to be laid off based on their relative seniority 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.[x] §§80 and 80-a of the Civil Service Law and various provisions of the Education Law set out the procedures to be followed in executing a layoff of employees in the classified service and the unclassified service respectively. These provisions, and similar statutes, are becoming required reading for many. With respect to those situations where there are no statutory or contractual requirements concerning layoff applicable to incumbents of positions to be abolished, the appointing authority should consider adopting guidelines that will survive a challenge alleging that the determination as to the specific individual or individuals to be laid off was arbitrary or capricious. As to employees in the competitive and noncompetitive classes in 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 to a different the position with a different title than the one from which he or she is to be laid off. [see CSL §80 with respect to incumbents of positions in the competitive class or CSL §80-a with respect to incumbents of positions in the noncompetitive class. In contrast, the Education Law provides that in the event a board of education abolishes a position, the services of the tenured teacher having the least seniority in the school district or BOCES "within the tenure area 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 the Appellate Division's decision in City of Plattsburgh v Local 788, 108 AD2d 1045. In the Plattsburgh case 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 initial permanent appointment in public service. For example, assume Employee A was provisionally appointed on January 1, and Employee B was provisionally 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 terms of the Local 788 collective bargaining agreement A would have greater seniority for layoff purposes than B. But §§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. These were the critical events 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 Civil Service Law §80 controlled and thus Mousseau, rather than Racine, had to be laid off first. The Appellate Division ruled that Plattsburgh was entitled to an order barring submitting the Union's grievance to arbitration. The Court said that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away. Similarly, in Szumigala v Hicksville Union Free School District, 148 AD2d 621, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated §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. 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, §80(1) obligates the employer to respect the seniority rights of its employees."[xi] The same it true with respect to layoffs of personnel in the unclassified service. In some layoff situations, however, the Doctrine of Legislative Equivalency may be a consideration. The Doctrine of Legislative Equivalency states that only the entity that created the position may abolish it [i.e., a position created by a legislative act can only be abolished by a correlative legislative act" (Matter of Torre v. County of Nassau, 86 NY2d 42). Layoff units or tenure area are also considerations. The elements that complicate the determination of the specific individual or individuals to be suspended or displaced as a result of a layoff include (1) the identification of the specific layoff unit(s) or tenure area(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. Essentially the layoffs of individuals employed in positions in the classified service are subject to §§80 and 80-a of the Civil Service Law while the layoff of incumbents of positions in the unclassified service employed by a BOCES or a school district is controlled by §§2510, 2588 and 3013 of the Education Law. In addition, Rules of the Board of Regents must be considered. For example, 8 NYCRR 30-1.13 [Rights incident to abolition of positions] allows a more senior individual to "bump" a less senior individual following his or her transfer to position in another tenure area in the course of a layoff situation. . Some collective bargaining agreements may set out a different basis for determining seniority or grant "super-seniority" to certain individuals. As earlier indicated, in a layoff situation, the statutory provisions regarding determining seniority trump those set out in the collective bargaining agreement. . Sometimes it may be necessary to break a "tie" in seniority, [for example, see CSEA v OMH, 196 A.D.2d 276; Fiffe v City of Cohoes CSD, 262 A.D.2d 762], especially in a layoff involving a school district where typically a number of educators are appointed simultaneously effective at the beginning of an academic year [see, for example, Decisions of the Commissioner of Education 12933]. Essentially any rational method of ranking to break ties in seniority may be used as long as it is consistently applied to those subject to the layoff.Another facet in the layoff mosaic – 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 [§85, Civil Service Law]. Five years of service are credited 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 §85.7 of the Civil Service Law. In addition, ordered military service does not constitute a "break in service" for the purposes of layoff. Also, §86 of the Civil Service Law provides for the transfer of veterans and exempt volunteer firemen employed by political subdivisions of the State in positions in the non-competitive class or in the labor class upon the abolition of positions in such classes [see, for example, Bartholomew v Columbia County, 191 A.D.2d 88]. . Another element that may be a factor in some layoff situations involves determining §§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 §45 of the Civil Service Law or a similar law. Such employees will typically have two seniority dates to consider and it may be necessary to consider both when determining their retention rights in a layoff situation. One is their date of seniority with respect to other public employees in the layoff unit generally, usually determined on the basis of the effective date of the takeover. The second is the date of their seniority with respect to their coworkers at the private enterprise continued in public service pursuant to §45 upon the takeover. . The "fall-out" of a layoff is the preferred list. Errors in the creation and use of preferred lists could be as expensive to the employer as errors in determinations concerning the individuals laid off following the abolishment of positions. This is further complicated by the fact that a preferred list is a "moving target." If, for example, an individual is first on a preferred list, he or she may later be displaced as "number 1" by an individual in the layoff unit having greater seniority but subsequently laid off. . Further, an individual is entitled to remain on a preferred list for the statutory period authorized by law, measured from the date on which he or she was laid off and placed on the preferred list, even if he or she obtains other employment, and must be certified for reinstatement to his or her title while on the list in the event a vacancy occurs or the position must be left vacant. . Significantly, the use of a preferred list is pursuant to the "rule of one," meaning the person highest on the list willing to accept the position must be offered the appointment. As both the Civil Service Law and the Education Law provide employees with substantial rights in layoff situations, it seems clear that the employer must go forward with care in effecting its layoff decisions. Vita – Harvey Randall served as Principal Attorney, New York State Department of Civil Service. He also served as Director of Personnel for the State University System, as Director of Research, Governor's Office of Employee Relations and Staff Judge Advocate General, New York Guard. He is the co-author of a number of books concerning public employment in New York State including The Discipline Book, – a concise guide to disciplinary actions involving public employees in New York State – a 1272 page e-book [Click on http://thedisciplinebook.blogspot.com/ for additional information]; The Layoff, Preferred List and Reinstatement Manual – a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative reference manual [Click On http://nylayoff.blogspot.com/ for additional informationl]; and General Municipal Law§§ 207-a and 207-c – a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder [Click on http://section207.blogspot.com/ for additional information]. End Notes .  Marlow v Tully, 63 NY2d 91 [ii] New York has a military service consisting of four components: the organized militia, the state reserve list, the state retired list and the unorganized militia. [iii] If all this were not complicated enough, the line between public employment and "private employment" may be blurred in quasi-governmental entities. The general rule is that the officers and employees of a public benefit corporation are employed in the "private sector" and are not subject to the provisions of the Civil Service Law. Thus employees of an Off-track Betting Corporation are in the private sector and may not claim rights set out in the Civil Service Law. However, the Legislature has specifically granted civil service rights to the officers and employees of certain public benefit corporations. For example, the officers and employees of the New York City Off-track Betting Corporation are subject to the State's civil service system as a matter of law. [iv] The term jurisdictional classification is sometimes confused with "position classification." Position classification deals with the duties and responsibilities of a position and, for State positions, its allocation to a salary grade [v] In some instances an individual may be employed pursuant to a "contract of employment" having a fixed duration or his or her continuation in employment may be subject to the appointing authority receiving "grant" or similar funding from an outside source. Such employees typically to not enjoy tenure in such a position but may be on leave from a position in which they hold "tenure." Such tenure status in a position from which the officer or employee is on leave is another element that must be considered by the appointing authority in layoff situations. [vi] If there is a conflict between the records of the employer and the records of the responsible civil service commission regarding the status of an individual in a position in the classified service, the record of the civil service agency having jurisdiction controls. [vii] A special "appointment status" results when an individual is appointed to a position encumbered by an officer or employee absent for ordered military service. In such situations the position held by a public employee absent on military duty typically is filled by appointing a "substitute employee" to the vacancy. The substitute employee is appointed "for a period not exceeding the leave of absence of the former incumbent and … shall acquire no right to permanent appointment or tenure by virtue of" such service. For additional information concerning "substitute appointments, see Sections 242 and 243 of New York State's Military Law. [viii] For example, Section 63.1 of the Civil Service Law provides that "every original appointment to a position in the competitive class is subject to a probationary period." This language means that the effective date of an individual's permanent appointment to a position in the competitive class occurs on the same day that his or her probationary period begins. [ix] Civil Service Law Section 64.4. A "contingent permanent" employee serves in a position that has been "left temporarily vacant by the leave of absence of the permanent incumbent thereof," and who has been permanently appointed or reinstated to the position in accordance with Section 64.4 of the Civil Service Law. For an example of how these appointments are made at the state level, see Section 4.11 of the Rules of the NYS Civil Service Commission. [x] Employee improperly laid off due to error in determining her seniority entitled to back pay without any deduction for amounts she might have earned prior to being reinstated to her position. Civil Service Employees Ass'n, Inc., Local 1000, AFSCME, AFL-CIO v. Brookhaven-Comsewogue Union Free School Dist., 87 N.Y.2d 868. [xi] The Attorney General has opined that there must be an actual abolishment of the position in question, in contrast to merely "creating a vacancy as the result of a layoff" in order to trigger the relevant statutory layoff procedures [1976 Opinions of the Attorney General 7]. .
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