Know Your Rights

End-of-the-Year Roundup

By JAMES A. BROWN

Today's column represents the fifth anniversary for "Know Your Rights." In five years, we have covered much ground examining employment laws and court decisions pertaining to the civil service. Because the law is forever evolving, there should be an abundance of new topics to ring in a 10th anniversary. As we move forward, however, the message remains the same: you cannot enforce your workplace rights unless you first know your rights.

High Court Decisions

This past year, I highlighted three high court decisions, two of which were issued by the United States Supreme Court. In Garcetti v. Ceballos, the Supreme Court sharply restricted certain public-employee retaliation claims by limiting Constitutional "free speech" rights in the workplace. Specifically, the Court held that a public employee who alleges that he or she was retaliated against based on statements made in the course of his or her "official duties" no longer states a violation of the First Amendment. The following month, the Supreme Court (almost) made up for Garcetti when it issued Burlington Northern v. White. This latter decision makes it easier for employees to file claims if they are retaliated against after complaining of employment discrimination. The Supreme Court does this by expanding the definition of unlawful retaliation. Under Burlington Northern, courts no longer review retaliation claims based solely on the degree to which your employer's adverse action negatively impacts your employment. Now, any adverse employment action (other than "petty slights or minor annoyances") may qualify as unlawful retaliation provided such action would dissuade a "reasonable person" from initially complaining of discrimination.

This column also reported on a New York Court of Appeals opinion which likely eliminates "de novo" Civil Service Commission hearings in "disqualification" cases. While the Civil Service Commission may still review claims regarding improper disqualification for appointments or promotions, the Commission can no longer review new evidence. Instead, the Commission is limited to examining the evidence considered by the Department of Citywide Administrative Services (or other mayoral agency designated to review a candidate's qualifications).

Practical Advice

I also provided practical advice this past year. I explained the advantages of actually tendering your resignation when your termination of employment is imminent. By resigning, you will be able to truthfully represent to prospective employers that you left your city job of your own accord and for personal reasons. Managers who resign also avoid any forfeiture of their "terminal leave" benefits otherwise lost if they are terminated for misconduct. Finally, the Unemployment Insurance Board (which generally disqualifies applicants who resign) is more likely to award unemployment insurance benefits to an applicant who resigned, in the face of disciplinary charges, as opposed to one terminated for misconduct.

I also addressed the pitfalls of alleging discrimination at your labor arbitration. You should continue to pursue your claim at arbitration if you were disciplined without "just cause'' - especially if you are terminated and seek reinstatement and back pay. However, you should refrain from injecting any discrimination claim at arbitration if you are also intent on filing an employment discrimination lawsuit.

For those seeking Family and Medical Leave Act protection, I urged you to specifically request such leave from your employer. Your request should be made "as soon as practicable" (within a couple of days of knowing of your need for leave) and should be sufficiently specific to show that you (or your immediate family member) are suffering from a "serious health condition." You should also make express reference to the Family Medical Leave Act in your request.

New Laws

Finally, I highlighted new changes in the employment laws. For example, I featured the new amendments to the city's Human Rights Law. These new amendments, in part, make retaliation claims easier to file as did the Supreme Court in Burlington Northern (which expanded the definition of "retaliation" under Federal anti-discrimination law). The new amendments also underscore that the city's Human Rights Law is to be interpreted liberally and not necessarily in "lock-step" with the more restrictive state and Federal laws. This past year's legal landscape was definitely enhanced by these new amendments to the local law.

James A. Brown is a partner in the law firm Brown & Gropper, LLP. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com .