A4920-2011 Actions

• Jan 4, 2012: referred to governmental employees
• Feb 9, 2011: referred to governmental employees

A4920-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         4920
 2011-2012 Regular Sessions
 I N  ASSEMBLY
 February 9, 2011
 
 Introduced by M. of A. ABBATE -- read once and referred to the Committee
 on Governmental Employees
 

AN ACT to amend the civil service law, in relation to arbitration proce
 dures for violation of the fair employment act
 

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section 1.  Paragraph (e) of subdivision 2 of section 210 of the civil
 service law, as amended by chapter 254 of the laws of 1983,  is  amended
 to read as follows:

 (e)  Notice.  The  chief executive officer shall forthwith notify each
 employee AND THE RECOGNIZED OR CERTIFIED EMPLOYEE ORGANIZATION  that  he
 OR  SHE  has  [been] found SUCH A VIOLATION to have BEEN committed [such
 violation], the date or dates thereof and of his OR HER right to  object
 to  such  determination pursuant to paragraph [(g)] (F) of this subdivi
 sion; he OR SHE shall also notify the chief fiscal officer of the  names
 of  all such employees and of the total number of days, or part thereof,
 on which it has been determined that such violation occurred. Notice  to
 each  employee  AND  THE  RECOGNIZED  OR CERTIFIED EMPLOYEE ORGANIZATION
 shall be by personal service or by certified mail to  his  OR  HER  last
 address filed by him OR HER with his OR HER employer.
 

S  2.  Paragraph  (f)  of  subdivision  2  of section 210 of the civil
 service law, as amended by chapter 503 of the laws of  1971  and  relet
 tered  by  chapter  254 of the laws of 1983, is relettered paragraph (g)
 and amended to read as follows:

 (g) Payroll deductions. Not earlier than thirty nor later than  ninety
 days  following  the  date  of [such] THE determination MADE PURSUANT TO
 PARAGRAPH (D) OF THIS SUBDIVISION IN THE CASE OF  AN  EMPLOYEE  WHO  HAS
 MADE NO OBJECTION TO SUCH DETERMINATION, OR THE DECISION OF THE ARBITRA
 TOR, WHERE SUCH OBJECTION HAS BEEN MADE, the chief fiscal officer of the
 government  involved  shall IMPLEMENT THE DECISION OF THE ARBITRATOR, OR
 IN THE CASE OF AN EMPLOYEE WHO HAS MADE NO  OBJECTION  TO  THE  DETERMI
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD09081-01-1
 
       A. 4920                             2
 NATION  MADE  PURSUANT  TO PARAGRAPH (D) OF THIS SUBDIVISION deduct from
 the compensation of each such public employee an amount equal  to  twice
 his  OR  HER  daily rate of pay for each day or part thereof that it was
 determined  that  he  OR SHE had violated this subdivision; such rate of
 pay to be computed as of the time of such violation. In IMPLEMENTING THE
 DECISION OF THE ARBITRATOR, OR computing such deduction, credit shall be
 allowed for amounts already withheld from such  employee's  compensation
 on  account  of  his  OR  HER  absence from work or other withholding of
 services on such day or days. In computing the aforesaid thirty to nine
 ty day period of time following THE DECISION OF THE ARBITRATOR,  OR  the
 determination  of a violation pursuant to [subdivision] PARAGRAPH (d) of
 [paragraph two of] this [section] SUBDIVISION IN THE CASE OF AN EMPLOYEE
 WHO HAS MADE NO OBJECTION TO SUCH DETERMINATION, and where  the  employ
 ee's  annual  compensation  is  paid over a period of time which is less
 than fifty-two weeks, that period of time between the last  day  of  the
 last  payroll  period  of  the  employment  term  in which the violation
 occurred and the first day of the  first  payroll  period  of  the  next
 succeeding employment term shall be disregarded and not counted.
 

S  3.  Paragraph  (g)  of  subdivision  2  of section 210 of the civil
 service law, as amended by chapter 254 of the laws of  1983,  is  relet
 tered paragraph (f) and amended to read as follows:

 (f)  Objections  [and],  restoration  AND  ARBITRATION.   Any employee
 determined to have violated this subdivision may object to such determi
 nation ON THE GROUNDS THAT NO SUCH VIOLATION HAS  OCCURRED  AND,  IF  NO
 SUCH  OBJECTION  IS FILED BY THE RECOGNIZED OR CERTIFIED EMPLOYEE ORGAN
 IZATION ON THE GROUNDS THAT THE GOVERNMENT INVOLVED PROVOKED THE CONDUCT
 ALLEGEDLY CONSTITUTING SUCH VIOLATION by filing with the chief executive
 officer, (within twenty days of the date on which notice was  served  or
 mailed  to him OR HER pursuant to paragraph (e) of this subdivision) his
 OR HER  sworn  affidavit,  supported  by  available  documentary  proof,
 containing a short and plain statement of the facts upon which he OR SHE
 relies  to  show  that  such determination was incorrect. Such affidavit
 shall be subject to the penalties of perjury.  If  the  chief  executive
 officer  shall  determine that the affidavit and supporting proof estab
 lishes that the employee did not violate this  subdivision,  he  OR  SHE
 shall sustain the objection. If the chief executive officer shall deter
 mine that the affidavit and supporting proof fails to establish that the
 employee  did not violate this subdivision, OR IF THE OBJECTION IS BASED
 SOLELY UPON PROVOCATION ON THE PART OF THE GOVERNMENT  INVOLVED,  he  OR
 SHE  shall  dismiss  the  objection  and so notify the employee[. If the
 chief executive officer shall determine that the affidavit and  support-
 ing  proof  raises a question of fact which, if resolved in favor of the
 employee, would establish that the employee did not violate this  subdi-
 vision,  he shall appoint a hearing officer to determine whether in fact
 the employee did violate this subdivision after a hearing at which  such
 employee  shall  bear  the burden of proof. If the hearing officer shall
 determine that the employee failed to establish that he did not  violate
 this  subdivision,  the  chief  executive  officer  shall  so notify the
 employee.  If the chief executive officer sustains an objection  or  the
 hearing  officer determines on a preponderance of the evidence that such
 employee did not violate this subdivision, the chief  executive  officer
 shall  forthwith  notify  the  chief  fiscal officer who shall thereupon
 cease all further deductions and refund any deductions  previously  made
 pursuant  to this subdivision. The determinations provided in this para-
 graph shall be reviewable pursuant to article seventy-eight of the civil
 practice law and rules] AND THE EMPLOYEE ORGANIZATION  THAT  REPRESENTED
 
       A. 4920                             3
 HIM OR HER. WITHIN TWENTY DAYS AFTER RECEIPT OF SUCH NOTIFICATION BY THE
 PUBLIC  EMPLOYEE  OR  THE  EMPLOYEE ORGANIZATION WHICHEVER IS LATER, THE
 PUBLIC EMPLOYEE, THROUGH HIS OR HER EMPLOYEE ORGANIZATION, WHERE  APPLI
 CABLE, MAY REQUEST THAT A DETERMINATION AS TO WHETHER HE OR SHE VIOLATED
 THIS  SUBDIVISION  AND/OR WHETHER SUCH ALLEGED VIOLATION WAS PROVOKED BY
 THE GOVERNMENT INVOLVED BE MADE BY AN ARBITRATOR SELECTED,  PURSUANT  TO
 THE RULES AND PROCEDURES OF THE AMERICAN ARBITRATION ASSOCIATION, BY THE
 GOVERNMENT  INVOLVED  AND  THE  EMPLOYEE  ORGANIZATION  REPRESENTING THE
 OBJECTING EMPLOYEES, FROM A LIST SUPPLIED BY  THE  AMERICAN  ARBITRATION
 ASSOCIATION  AFTER A HEARING CONDUCTED UNDER THE RULES AND PROCEDURES OF
 THE AMERICAN ARBITRATION ASSOCIATION AT WHICH  THE  GOVERNMENT  INVOLVED
 SHALL  BEAR  THE BURDEN OF PROOF. ALL OBJECTIONS ARISING OUT OF THE SAME
 INCIDENTS CONSTITUTING THE ALLEGED VIOLATIONS  OF  THIS  SECTION  AND/OR
 PROVOCATION ON THE PART OF THE GOVERNMENT INVOLVED SHALL BE CONSOLIDATED
 FOR  DISPOSITION  AND  DETERMINATION BY ONE ARBITRATOR.  THE COST OF THE
 ARBITRATION PROCEEDING AND THE FEE OF THE ARBITRATOR  SHALL  BE  EQUALLY
 SHARED  BY  THE  GOVERNMENT  INVOLVED  AND  THE EMPLOYEE OR THE EMPLOYEE
 ORGANIZATION REPRESENTING THE OBJECTING EMPLOYEE. WITHIN  FIVE  DAYS  OF
 THE  CONCLUSION  OF THE ARBITRATION HEARING THE ARBITRATOR SHALL FORWARD
 HIS OR HER REPORT CONSISTING OF HIS OR HER FINDINGS AND  RECOMMENDATIONS
 INCLUDING  RECOMMENDATIONS  AS  TO PENALTIES IF WARRANTED TO THE PARTIES
 AND TO THE CHIEF FISCAL OFFICER OF THE GOVERNMENT INVOLVED. IF THE ARBI
 TRATOR FINDS THAT THE GOVERNMENT INVOLVED FAILED TO PROVE THE  OBJECTING
 EMPLOYEE VIOLATED THIS SUBDIVISION HE OR SHE SHALL SUSTAIN THE OBJECTION
 OF  THE  EMPLOYEE.  IF  THE  ARBITRATOR  FINDS BY A PREPONDERANCE OF THE
 EVIDENCE THAT THE GOVERNMENT  INVOLVED  PROVED  THE  OBJECTING  EMPLOYEE
 VIOLATED  THIS SUBDIVISION AND FURTHER FINDS THAT SUCH VIOLATION WAS NOT
 PROVOKED BY THE GOVERNMENT INVOLVED, HE OR SHE SHALL  REQUIRE  THAT  THE
 CHIEF  FISCAL OFFICER OF THE GOVERNMENT INVOLVED DEDUCT FROM THE COMPEN
 SATION OF EACH SUCH EMPLOYEE AN AMOUNT EQUAL TO TWICE HIS OR  HER  DAILY
 RATE  OF  PAY  FOR  EACH  DAY OR PART THEREOF IT WAS FOUND HE OR SHE HAD
 VIOLATED THIS SUBDIVISION. IF THE ARBITRATOR FINDS  THAT  THE  OBJECTING
 EMPLOYEE VIOLATED THIS SUBDIVISION AND FURTHER FINDS THAT THE GOVERNMENT
 INVOLVED  PROVOKED SUCH VIOLATION HE OR SHE SHALL REQUIRE THAT THE CHIEF
 FISCAL OFFICER OF THE GOVERNMENT INVOLVED DEDUCT FROM  THE  COMPENSATION
 OF  EACH  SUCH EMPLOYEE AN AMOUNT WHICH SHALL BE NO GREATER THAN ONE AND
 ONE-HALF NOR LESS THAN AN AMOUNT EQUAL TO, HIS OR HER DAILY RATE OF  PAY
 FOR  EACH  DAY  OR PART THEREOF IT WAS FOUND HE OR SHE HAD VIOLATED THIS
 SUBDIVISION. THE DETERMINATION OF THE  ARBITRATOR  SHALL  BE  REVIEWABLE
 PURSUANT TO ARTICLE SEVENTY-FIVE OF THE CIVIL PRACTICE LAW AND RULES.
 

S  4. Subdivision 2 of section 210 of the civil service law is amended
 by adding a new paragraph (h) to read as follows:

 (H) OBJECTIONS BY EMPLOYEE ORGANIZATIONS.  NOTWITHSTANDING  ANY  OTHER
 PROVISION  OF  LAW  TO  THE CONTRARY, A RECOGNIZED OR CERTIFIED EMPLOYEE
 ORGANIZATION MAY, WHERE SUCH OBJECTION IS BASED SOLELY UPON  PROVOCATION
 ON THE PART OF THE GOVERNMENT INVOLVED, FILE OBJECTIONS ON BEHALF OF ALL
 PERSONS  REPRESENTED  BY  SUCH  EMPLOYEE  ORGANIZATION  PURSUANT  TO THE
 PROVISIONS OF PARAGRAPH (F) OF THIS SUBDIVISION.
 

S 5. This act shall take effect immediately.

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