Know Your Rights
Tough Year for Civil Servants

By JAMES A. BROWN

For those who follow legal trends, civil servants have had little to celebrate this past 12 months. Summer 2006 left us with a bad decision limiting public-employee whistleblower claims. Other adverse court decisions soon followed.

James A. Brown is an attorney based in Manhattan. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com .

When courts modify or eliminate hard-won worker rights, employees generally look to the legislature to enact new laws or to amend old ones. Recently, civil servants have had to rely on their legislators to re-establish rights lost in the courts. Today's annual 12-month roundup examines some of this past year's decisions which required either a legislative response or some remedial action by the city's Department of Citywide Administrative Services.

Adverse Decisions

In the summer of 2006, the United States Supreme Court limited public-employee whistleblower claims that were based on Constitutional "free-speech" rights. Now, when a public employee suffers an adverse action, based on statements which are made as a part of his or her "official duties," that employee may no longer rely on the First Amendment to claim whistleblower status and unlawful retaliation.

Unfortunately, this past year, more bad decisions followed. Last spring, I reported that public employees also lost their "Weingarten rights" under the state's Taylor Law. As you probably know, Weingarten entitles employees to representation during certain investigatory interviews which may lead to their discipline.

Fortunately, there was a prompt response from the State Legislature, which passed a bill, signed by Governor Spitzer this past summer, which restores valuable Weingarten rights to public employees under the Taylor Law.

Within weeks of its decision denying Weingarten rights, the Court of Appeals also held that provisional employees are no longer entitled to contractual job security. Provisionals never benefitted from job security under Civil Service Law § 75. However, some provisionals enjoyed contractual job security under collective-bargaining agreements, including those agreements negotiated by District Council 37 which permitted arbitration for provisionals after two years of employment.

The Court of Appeals' reasoning for denying job security to provisionals is unimpeachable. This is because the Civil Service Law expressly provides that provisionals may not be employed for more than nine months and must also be terminated within two months of when an eligible list is published (or within four months under very limited circumstances).

Undeniably, provisional employment contradicts the civil service's basic tenet that appointments and promotions be made based on "merit and fitness" (and using competitive examination whenever possible). Yet we all know provisional employees; some are longtime co-workers. Thus an appropriate response is needed. Fortunately, DCAS has pledged to increase the frequency of civil service examinations, which will afford some provisionals the opportunity to become permanent employees.

Another setback for employees (and not just public employees) was the Supreme Court's decision I highlighted last month. The Supreme Court is now making it harder, under Title VII of the Civil Rights Act of 1964, to file timely pay disparity claims (based on gender, race, etc.). Previously, an employee filed a timely claim with the Equal Employment Opportunity Commission in New York if the claim was made within 300 days of when the employee received his or her paycheck reflecting discriminatory treatment. Now, such pay claims must be filed within 300 days of when the actual discriminatory act occurred (which might be discovered too late, years after it was committed).

Congress May Help

Again, employees were forced to look to the legislature. The good news is that Congress is taking steps to amend Title VII to restore the old filing requirements which benefit victims of discriminatory pay practices.

Finally, I reported on a decision which highlights how a court's power to remedy discriminatory appointments and promotions in the civil service is sharply limited by the "one-in-three" rule. Because of that rule (which allows a public employer to pass over candidates on an eligible list), courts will not order a public employer to hire or promote you even if you have proven unlawful discrimination in the hiring and promotion process. Rather, the best you can hope for is a court order directing the public employer to reconsider you on the eligible list (provided the list is still active). Thus, we are reminded of yet another example, the unpopular one-in-three rule, which also requires legislative attention.