STROOCK REPORTS – PUBLIC EMPLOYEE LAWCo-Editors: Alan M. Klinger, Co-Managing Partner, and Dina Kolker, Special Counsel in...
s t r o o c k & s t r o o c k & l a v a n l l pAccordingly, these critics want the provision tosunset on July 1, 2013.3Lea...
s t r o o c k & s t r o o c k & l a v a n l l p2. Correcting An ImbalanceDuring the early years of the Taylor Law, publice...
s t r o o c k & s t r o o c k & l a v a n l l ponly increase costs during the negotiation if (1)negotiations are protracte...
s t r o o c k & s t r o o c k & l a v a n l l pPERB also responded to the critique that itsreading of the Taylor Law depri...
s t r o o c k & s t r o o c k & l a v a n l l pimpasse, an award was issued to resolve only 7% offirefighter and 9% of pol...
s t r o o c k & s t r o o c k & l a v a n l l pcheapen the outcomes will ultimately cheapen theprocess.For More Informatio...
s t r o o c k & s t r o o c k & l a v a n l l p825. [1975] N.Y. LAWS 1405 § 10 (McKinney); N.Y. PUB.AUTH. §3854. A wage fr...
STROOCK REPORTS – PUBLIC EMPLOYEE LAWCo-Editors: Alan M. Klinger, Co-Managing Partner, and Dina Kolker, Special Counsel in...
s t r o o c k & s t r o o c k & l a v a n l l pgranting:The right of the people to be secure againstunreasonable intercept...
s t r o o c k & s t r o o c k & l a v a n l l pthat the tracking device in Knotts was primitive andrequired police officer...
s t r o o c k & s t r o o c k & l a v a n l l pnarcotics. The FBI and Metropolitan PoliceDepartment targeted him in a join...
s t r o o c k & s t r o o c k & l a v a n l l p“erodes that longstanding protection for privacyexpectations inherent in it...
s t r o o c k & s t r o o c k & l a v a n l l papproach to dealing with the scope of the FourthAmendment’s privacy protect...
s t r o o c k & s t r o o c k & l a v a n l l p1525. Jones, 132 S. Ct. at 949.26. Justices Breyer, Ginsburg and Kagan join...
STROOCK REPORTS – PUBLIC EMPLOYEE LAWCo-Editors: Alan M. Klinger, Co-Managing Partner, and Dina Kolker, Special Counsel in...
s t r o o c k & s t r o o c k & l a v a n l l pUFT sued the BOE in state court to enjoin thedissemination of TDRs, unless ...
s t r o o c k & s t r o o c k & l a v a n l l pcurrent or former members of the CommunistParty.17The City, which promised ...
s t r o o c k & s t r o o c k & l a v a n l l p19For More InformationAlan M. Klinger212.806.5818aklinger@stroock.com1. Car...
STROOCK REPORTS – PUBLIC EMPLOYEE LAWCo-Editors: Alan M. Klinger, Co-Managing Partner, and Dina Kolker, Special Counsel in...
s t r o o c k & s t r o o c k & l a v a n l l pstatutory provision under which the agency hasacted.5The “zone of interests...
s t r o o c k & s t r o o c k & l a v a n l l pJusticiabilityAlthough the First Department could haveended its analysis of...
s t r o o c k & s t r o o c k & l a v a n l l p236. Soc’y of Plastics Indust., Inc. v. Cty. Of Suffolk, 77 NY2d761, 773-74...
STROOCK REPORTS – PUBLIC EMPLOYEE LAWCo-Editors: Alan M. Klinger, Co-Managing Partner, and Dina Kolker, Special Counsel in...
s t r o o c k & s t r o o c k & l a v a n l l pin effect through May 2011, stating that:A. The Village shall not lay-off a...
s t r o o c k & s t r o o c k & l a v a n l l pimproperly subject the Village’s layoff authority to“the whim” of an arbitr...
s t r o o c k & s t r o o c k & l a v a n l l p“resulting from a slowdown in the operation of theplant or some such simila...
The Taylor Law (particularly the Triborough Amendment provision) expires on July 1st. What should Gov. Cuomo do?
The Taylor Law (particularly the Triborough Amendment provision) expires on July 1st. What should Gov. Cuomo do?
The Taylor Law (particularly the Triborough Amendment provision) expires on July 1st. What should Gov. Cuomo do?
The Taylor Law (particularly the Triborough Amendment provision) expires on July 1st. What should Gov. Cuomo do?
The Taylor Law (particularly the Triborough Amendment provision) expires on July 1st. What should Gov. Cuomo do?
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The Taylor Law (particularly the Triborough Amendment provision) expires on July 1st. What should Gov. Cuomo do?

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The Taylor Law requires that the municipal administration of collective bargaining be “substantially equivalent” to administration of the Taylor Law by the Public Employee Relations Board (“PERB”).6 Accordingly, the New York City Collective Bargaining Law (“NYCCBL”), applicable to public employees in New York City, includes a provision analogous to the Triborough Amendment, and administration of this provision tracks with PERB’s administration of state law.

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The Taylor Law (particularly the Triborough Amendment provision) expires on July 1st. What should Gov. Cuomo do?

  1. 1. STROOCK REPORTS – PUBLIC EMPLOYEE LAWCo-Editors: Alan M. Klinger, Co-Managing Partner, and Dina Kolker, Special Counsel in Stroock’s Litigation andGovernment Relations Practice Groups. The Co-Editors wish to thank Beth A. Norton, Kerry T. Cooperman, LeeM. Leviter and Jason S. Vinokur, associates in Stroock’s Litigation and Government Relations Practice Groups,whose contributions to researching and writing the articles in this issue were invaluable.Triborough and Interest Arbitration: A BalancedApproach to Collective NegotiationsSummer 2012IntroductionLast year saw debilitating losses to public sectorworkers. Anti-union bills in both Wisconsin andOhio rolled back core collective bargaining rightsamidst fierce public debate.1More recently,Wisconsin’s pro-union voters were unable to oustGovernor Scott Walker in a recall election, whileresidents of San Diego and San Jose voted to cutthe pension benefits afforded to city workers.2New York, long a bastion of public sector strength,proved not immune to anti-union sentiment withthe recent legislative adoption of Tier 6 limits onpension levels for new hires. Now, labor’sopponents are targeting the Taylor Law, the statuteenacted to maintain balanced labor relationsthroughout the state.Critics seem particularly intent on repeal, or atleast reform, of the Triborough Amendment. Thisprovision of the Taylor Law forbids publicemployers from unilaterally changing the terms andconditions of employment during negotiations afterthe existing contract has expired, allowing workersto “benefit” from the terms of the previouscontract until a new one is reached. (As discussedbelow, absent from the discourse regarding theTriborough Amendment has been what unionsagreed to forego in return for this protection.)Critics also are opposed to a provision of the TaylorLaw that compels police officers, firefighters, andother uniformed personnel to resolve impasse viainterest arbitration. They not only object to theprovision’s interaction with Triborough, whichensures that employers cannot compel unions toenter into arbitration before there is genuineimpasse, but also argue that interest arbitrationshould be more favorable to employers.ALSO IN THIS ISSUEProtecting Privacy in the Technology Age: The Scopeof GPS Tracking of Public-Sector Employees in theWake of U.S. v. Jones………………………..………..9A Hopeful Outlook On Privacy Rights For PublicSector Employees……………………………………16State Court Appellate Division: Health and HospitalEmployees Have No Standing to Sue under Health andSafety Regulations…………………………………...20Negotiating “No-Layoff” Clauses In The Aftermath OfJohnson City Professional Firefighters Local 921 v. Village ofJohnson City…………………………….…………….24
  2. 2. s t r o o c k & s t r o o c k & l a v a n l l pAccordingly, these critics want the provision tosunset on July 1, 2013.3Leading the attacks are the Empire Center forNew York State Policy (the “Empire Center”) andthe Manhattan Institute. Indeed, within the pastfew months, the Empire Center has attacked theseprotections in the pages of both the New YorkTimes and Newsday.4Although the Empire Centerand the Manhattan Institute have long opposedlabor, the concern is that their views seem to begaining traction – a Triborough repeal bill waspresented in the New York State Assembly andGovernor Cuomo may be considering a suspensionof the Amendment.5Any change to the Taylor Law would havedramatic ramifications for labor relationsthroughout New York State. The Taylor Lawrequires that the municipal administration ofcollective bargaining be “substantially equivalent”to administration of the Taylor Law by the PublicEmployee Relations Board (“PERB”).6Accordingly, the New York City CollectiveBargaining Law (“NYCCBL”), applicable to publicemployees in New York City, includes a provisionanalogous to the Triborough Amendment, andadministration of this provision tracks with PERB’sadministration of state law.7With respect tocompulsory interest arbitration, the Taylor Law alsocovers corrections officers and certain detective-and criminal-investigators,8and affords optionalcoverage to unions representing transit employeesthroughout New York City.9Furthermore, policeand fire personnel (and certain other investigators)in New York City may petition PERB to assertexclusive jurisdiction over impasse proceedings,thereby subjecting themselves and their adversariesto the Taylor Law’s compulsory interest arbitrationprovisions.10Any state-level attack on compulsoryarbitration would equally threaten labor relationsfor these workers.11These critics, however, ignore the delicatebalance at the heart of the Taylor Law: protectingthe public against the disruption of public serviceswhile simultaneously protecting the rights of publicemployees.12They “forget” that the Taylor Lawstrips public employees of their essential democraticright to strike,13making Triborough and interestarbitration essential protections during thebargaining process. They further fail to account forempirical evidence of how collective negotiationsactually function. Ultimately, their myopic focuson making bargaining outcomes less expensivethreatens to destabilize labor relations throughoutthe state.A Needed Protection1. Tilting The ScaleCritics claim the Triborough Amendment chillscollective negotiations. The repeal bill that wasbrought before the New York State Assemblyasserts that the Amendment “undermines thecollective bargaining process and discourages thoseat the negotiating table from making givebacks orconcessions.”14Similarly, the Empire Centerbrazenly asserts that repeal of the TriboroughAmendment would “restore at least some balance”to collective bargaining in New York State.15However, repeal would actually accomplish theopposite, tilting the scales heavily in management’sfavor and ultimately threatening the unions’ abilityto adhere to the strike prohibition.To argue that Triborough should be repealedbecause it “disincentivizes unions from makingconcessions”16is simply to argue that unions shouldmake more concessions. Indeed, withoutTriborough, employers could put undue pressure onunions through unilateral changes, ultimatelyputting unions’ backs up against the strikeprohibition. A brief history of the Amendment isinstructive.2
  3. 3. s t r o o c k & s t r o o c k & l a v a n l l p2. Correcting An ImbalanceDuring the early years of the Taylor Law, publicemployers took advantage of the legal prohibitionagainst public sector strikes. If a bargaining contractexpired during the course of contract negotiations,many employers would unilaterally modifyemployment conditions in order to pressureunions. Worse, employers often deliberatelyprolonged contract negotiations specifically toemploy this tactic.17Even when employers did notunilaterally change workplace conditions, longperiods without a contract meant long periodswithout raises and benefits, frustrating unionmembership and imposing unfair pressure uponleaders to make extraordinary concessions. Theresult was widespread employer abuse andcorresponding labor unrest, with over 100 illegalstrikes within the first five years of the law’spassage.18In 1972, PERB addressed this type of unilateralchange with respect to mandatory subjects ofbargaining in Triborough Bridge and TunnelAuthority.19In what became known as theTriborough doctrine, PERB found that “thestatutory prohibition against an employeeorganization resorting to self-help by strikingimposes a correlative duty upon a public employerto refrain from altering terms and conditions ofemployment unilaterally during the course ofnegotiations.”20In PERB’s assessment, removingthe right to strike crippled the union’s ability tonegotiate effectively, and employers who madesuch unilateral changes did so in bad faith.Approximately 180 strikes over the next tenyears prompted the New York State Legislature totake further action. The so-called TriboroughAmendment, passed in 1982, prohibited publicemployers from “refus[ing] to continue all theterms of an expired agreement until a newagreement is negotiated” unless – importantly – theunion went on strike.21The Legislature thusrecognized a more equitable workplace balance:unions that acceded to the goal of maintaininglabor stability in the public sector would beprotected from unilateral changes when theircontracts expired during negotiations. Moreover,New York City’s Board of Collective Bargainingsoon read the Amendment into its ownjurisprudence.22The Amendment enacted into law afundamental component of PERB’s jurisprudence:“[t]he sine qua non of negotiating in good faith isrefraining from imposing unilateral changes interms and conditions of employment duringnegotiations.”23Indeed, as history shows,employers have little reason to bargain at all if theyremain able to make unilateral changes during thebargaining process. Thus, those who claim thatrepeal would “restore balance” to labor relations inNew York are, in fact, seeking to destroy afundamental piece of the existing balance. It isTriborough that restored fairness and balance. In itsabsence, the system would both deprive employeesof their basic right to strike and subject them to theemployer’s unchecked ability to obtain concessionsto unreasonable demands by strong-arming unionsinto “agreement.” Good-faith bargaining wouldbe rendered meaningless.3. Stepping On Step IncreasesEven if outright repeal is beyond reach, criticssuch as the Empire Center alternatively argue thatstep increases should be removed from Triborough’sambit because they are too costly to maintainduring the negotiation period. The argument failson its own terms.First, step increases accrued during impasse donot pose a budgetary burden because they arepredictable and, therefore, planned-for by theemployer. They also tend to be modest andinfrequent.Second, the argument entirely misrepresents theeconomics of contract negotiations. Step raises3
  4. 4. s t r o o c k & s t r o o c k & l a v a n l l ponly increase costs during the negotiation if (1)negotiations are protracted for sustained periodsbeyond the contract’s expiration and (2) oneassumes – as the Empire Center does – that a newagreement will not only fail to provide any raisesbut also include substantial salary cuts. Wages andsteps are almost always a part of a collectiveagreement and often apply retroactively, so the“increased costs” accrued during negotiations arenothing more than the costs the employer wouldhave faced if the new contract had been agreedupon immediately.More broadly, attacks on the “cost” of stepincreases are thinly-veiled reiterations of municipalemployers’ ongoing objections to the labor costsassociated with having a unionized workforce, acomplaint PERB has consistently maintained is tobe resolved through negotiation.24Indeed, theEmpire Center’s fixation on step increases fails toaccount for the fact that unions achieve reasonablecost reductions through reduced benefits andincreased productivity. Moreover, employers oftendelay payments of step raises accrued duringcontract negotiations, are reluctant to pay back-payonce a new contract is signed, and refuse to payany accrued interest. Back-pay thus effectivelyfunctions as an interest-free loan from union toemployer during the negotiation period, furtherincentivizing employers to prolong negotiations.Finally, even though Triborough helps establish asustainable balance, employers still maintainconsiderable authority to reduce costs and putpressure on unions even during a status quo period.In extreme cases, such as when New York Cityteetered on the brink of bankruptcy in the mid-1970s, and when Buffalo entered a fiscal crisis inthe mid-2000s, municipalities may seek to freezepublic sector wages within the confines of thefederal Contracts Clause.25The union has noequivalent power, and removing Triborough wouldonly tilt the scales further in management’s favor.4. Finality and StabilityBeyond protecting unions against unilateralchanges during the negotiation process, Triboroughalso protects uniformed personnel and others fromemployers who seek to force arbitration beforethere is genuine impasse. Under Triborough, unionssubject to compulsory interest arbitration mustauthorize the initiation of arbitral proceedings. Butthe Empire Center charges that this provisionenables police and fire unions to simply “lock in”all of their contract provisions, leaving employerswithout any ability to unilaterally commenceinterest arbitration.26A discussion of the provision at issue informs theresponse to this complaint. The Taylor Lawgenerally provides that PERB may declare impasseupon petition or consent of the union. Onceimpasse is declared, the parties must first attempt toresolve the dispute via mediation, then via fact-finding, then via legislative determination.27During the fact-finding process, the parties mayvoluntarily submit to arbitration. The law differsslightly for police, firefighters, transit workers andother uniformed forces – the parties must submit tofinal, binding arbitration if they cannot resolve thedispute through mediation.28It is this alternativeprocedure that is due to expire July 1, 2013.The Triborough Amendment modified thisprocess. It set forth that an employer may notchange the terms and conditions of employment“until a new agreement is negotiated,”29butultimately left unclear whether an employer maychange workplace policies as the result of an arbitralaward. In City of Kingston, PERB held in thenegative, seeking to prevent disingenuousemployers from rushing to arbitration beforeexhausting good faith bargaining.30Accordingly,PERB has read the Triborough Amendment torequire the union’s consent before arbitrationcommences.4
  5. 5. s t r o o c k & s t r o o c k & l a v a n l l pPERB also responded to the critique that itsreading of the Taylor Law deprives employers ofthe ability to petition PERB for an impassedetermination: Just as an employer may notunilaterally depart from the status quo duringcontract negotiations, an employer must not beable to compel the union to accept a new statusquo via a decision rendered by a third party.31Nevertheless, PERB did allow employeeorganizations to waive their rights underTriborough,32thus ensuring that disputes are resolvedwhen there is genuine impasse.The Empire Center also alleges that compulsoryarbitration allows unions to block arbitrationindefinitely. This fear is simply unfounded becauseboth parties always retain an obligation to bargainin good faith. Furthermore, given the employer’sability to effect layoffs, unions remain underpressure to reach agreement. The truth of this isborne out by the City often being the source ofdelay in negotiating new agreements. EliminatingTriborough would embolden the City’s continuedefforts to forestall the efficient and fair resolution ofdifferences during the bargaining process.Ultimately, the Triborough Amendment’sprotections are an effort to perfect the balancebetween protecting workers’ rights and maintaininglabor peace. A union that is denied its fundamentalright to strike must have the assurance that theemployer will neither unilaterally change the termsof conditions of employment, nor rush to impassein order to impose new terms and conditions viathe decree of a third party. Similarly, impasseresolution must allow the parties to come to mutualagreement when they are able, while also providingfor finality when they remain divided. Criticsignore these fundamental goals.An Attack On Impasse ResolutionDetractors also seek repeal and reform ofcompulsory interest arbitration itself. TheManhattan Institute claims that arbitral awards haveunduly increased firefighter salaries across the state,and advocates that the New York State Legislatureallow the provision to expire on July 1, 2013.33These positions, like those to repeal Triborough,misunderstand the purpose of interest arbitrationand misconstrue its effect.Compulsory interest arbitration has played acentral role in maintaining labor stability over thepast several decades. The Taylor Law wasoriginally passed without mention of interestarbitration,34because the law’s drafters anticipatedthat arbitration would undermine collectivenegotiations.35However, 40 illegal strikes withinthe first three years of the Taylor Law’s passage36made it clear that the Committee hadunderemphasized the value of an impasse processthat ultimately provided finality for employers,employees, and the public. The Taylor Law wasamended in 1974 to provide compulsoryarbitration for police and firefighters on a three-year experimental basis,37with the goal of ensuringthat services remained uninterrupted in thesesectors. The solution has largely worked,explaining why the provision has been expanded totransit workers, corrections officers, andinvestigators, and renewed repeatedly through thepresent.Contemporary critics falsely assert thatcompulsory interest arbitration encourages unionsto “rush to arbitration.”38At the outset, thisargument is in direct tension with cries to repealTriborough based on the fear that unions willprevent arbitration indefinitely. Moreover, there isno evidence that interest arbitration has increasedthe number of arbitral awards at the expense ofnegotiations.39To the contrary, a CornellUniversity study surveying awards between 1990and 2000 found that the availability of interestarbitration “encourages parties to be more realisticin their negotiations and to settle their impassewithout award.”40It found that, even though 28%of firefighter units and 40% of police units went to5
  6. 6. s t r o o c k & s t r o o c k & l a v a n l l pimpasse, an award was issued to resolve only 7% offirefighter and 9% of police contracts, with theremaining contracts being resolved voluntarily.41Statistics also show that among New York City’spolice and firefighter unions, 11 contractnegotiations reached impasse between 2000 and2010, and only three were resolved by arbitration.42The rest were resolved by voluntarily means.43Similarly unsupported by empirical evidence areclaims that compulsory interest arbitration undulyincreases salaries for firefighters and police officers.44The same Cornell University study found thatcompulsory interest arbitration has not “led to anescalation of wages beyond wage levels negotiatedby police and firefighters in other states withoutarbitration.”45Between 1990 and 2000,firefighters’ wages in New York State decreased by0.65%. By contrast, wages increased by 6.57% instates with arbitration statues, by 8.71% in stateswithout bargaining statutes, and by 15.72% in statesusing non-binding mechanisms of disputeresolution such as mediation and fact finding.Police wages in New York State between 1990and 2000 increased only 6.49%. By comparison,wages increased by 5.25% in other states witharbitration statues, by the same amount in stateswithout any bargaining law, and by 8.82% in statesemploying non-binding mechanisms of disputeresolution.46Short of outright repeal, critics also proposeseveral reforms. McMahon argues that theemployer’s “ability to pay” should be thearbitrators’ primary priority when rendering theirdecisions. Although the Taylor Law alreadyrequires arbitrators to account for “the financialability of the public employer to pay,”47McMahon advocates for a “rigorous analysis offiscal capacity in local communities.”48Essentially,he asks arbitrators to take the employer’spresentation of its own budgetary constraints at facevalue, thus assuming that employers are acting ingood faith. But claims of a fiscal shortfall too oftenreflect a mere unwillingness to allocate thenecessary resources. Even Mayor Bloombergacknowledges that municipal budgets intentionallyunderestimate revenues in anticipation of engagingin collective negotiations.49They are inherentlypolitical documents.Ultimately, calls for repeal and reform ofcompulsory interest arbitration ignore history andempirical evidence. Interest arbitration existsbecause it provides needed finality when the partiescannot satisfactorily resolve a contract dispute.Proposed “reform measures” would whollyundermine these aims, and repeal would churn uplabor unrest throughout the state. Similarly, thereis no evidence that arbitration chills negotiations orexcessively benefits unions. Most impasses areresolved prior to an award being issued by thearbitrator. And cries to repeal compulsory interestarbitration based on the fear that unions will rush toarbitrate are at odds with cries to repeal Triboroughbased on the fear that unions will preventarbitration indefinitely. The arguments give lie toeach other.ConclusionThe Triborough Amendment and compulsoryinterest arbitration represent attempts by the courtsand legislature to restore balance and stability to aregime that deprives unions of the basic democraticright to strike. Still, critics now argue that thesystem of collective negotiations should be morefavorable to the employer under the false banner of“restoring balance.” But rather than improving thebalance, their efforts would selectively underminethe existing balance in negotiation process,undercutting a 40-year history of legislative fine-tuning and judicial contemplation andcontravening empirical facts about the process ofcollective negotiation. Critics risk destabilizinglabor relations statewide because their attempts to6
  7. 7. s t r o o c k & s t r o o c k & l a v a n l l pcheapen the outcomes will ultimately cheapen theprocess.For More InformationAlan M. Klinger212.806.5818aklinger@stroock.com1. Ohio voters thankfully repudiated the anti-union bill ina referendum several months later. Sabrina Tavernise,“Ohio Turns Back a Law Limiting Unions’ Rights,”N.Y. TIMES at A1 (Nov. 9, 2011).2. Michael Cooper & Mary Williams Walsh, “San Diegoand San Jose Lead Way in Pension Cuts,” N.Y. TIMES atA1 (June 7, 2011).3. See N.Y. CIV. SERV. LAW § 209.4. E.g., Danny Hakim, Even without Contracts, Unions inState Get Raises, N.Y. TIMES, April 10, 2012, at A18.E.J;McMahon, “Nassau’s Generous Police Pay Can’t GoOn,” NEWSDAY, Feb. 23, 2012, at A37.5. See A01329, 2012 Assemb. (proposing a repeal of theTriborough Amendment); Hakim, supra note 4(explaining Governor Cuomo’s position).6. N.Y. CIV. SERV. LAW § 212(1), (2).7. The NYCCBL sets forth that an employer may notmake a unilateral change to any mandatory subject ofbargaining, or to any term and condition of employmentestablished by the previous contract. NYCCBL §12-306(a)(5). Even before the provision was codified intothe NYCCBL, the Board of Collective Bargainingdetermined that it was compelled by the Taylor Law tocomply with the Triborough Amendment itself. SeeLaRivere v. White, 39 OCB 36 (BCB 1987) (Anderson,Arb.). For a summary of PERB’s Triboroughjurisprudence, see, e.g., Dist. Council 37 v. City of NewYork, 71 OCB 12 (BCB 2003) (Semel, Arb.)8. See N.Y. CIV. SERV. LAW § 209(2).9. Covered by this provision are employees of the NewYork City Transit Authority, the Metropolitan TransitAuthority, and the Staten Island Rapid TransitOperating Authority. See id. at § 209(5)(a), (f)(permitting relevant employee organizations to elect tobe covered by the provision within 60 days of theprovision’s enactment).10. N.Y. CIV. SERV. LAW § 212(3); see also Patrolmen’sBenevolent Ass’n., 34 PERB 7040, *2 (2001). Pursuantto the holding of Patrolmen’s Benevolent Ass’n., the Boardof Collective Bargaining retains jurisdiction to determinethe scope of bargaining outside of the impasse context.Id. at *5.11. Moreover, repeal or reform of compulsory arbitration atthe state level could prompt New York City to revisitthe impasse process under the NYCCBL.12. See State of New York, Governor’s Committee onPublic Employee Relations, Final Report, March 31,1966, reprinted in, 1 Jerome Lefkowitz, et al., Public SectorLabor and Employment Law (3d ed. 2001) [hereinafterTaylor Report].13. Id. at 70.14. A01329 2012 Assemb.15. EMPIRE CENTER FOR NEW YORK STATE POLICY[EMPIRE CENTER], TRIBOROUGH TROUBLE: HOW ANOBSCURE STATE LAW GUARANTEES PAY HIKES FORGOVERNMENT EMPLOYEES – AND RAISES THE TAXTOLL ON NEW YORKERS 13 (Jan 11, 2012), available athttp://www.empirecenter.org/Documents/PDF/Triborough%20Final1.pdf. The same sentiment is echoed bythe New York Conference of Mayors (“NYCOM”).NYCOM, YOU CAN’T CAP WHAT YOU CAN’TCONTROL: RECOMMENDATIONS OF THE MAYORALTASK FORCE ON MANDATE AND PROPERTY RELIEF 11(December 2010) (arguing that the TriboroughAmendment “discourag[es] unions from offeringconcessions or givebacks).16. EMPIRE CENTER, supra note 15, at 8.17. RONALD DONOVAN, ADMINISTERING THE TAYLORLAW: PUBLIC EMPLOYEE RELATIONS IN NEW YORK 187(1990).18. Between 1967 and 1972, there were 121 illegal strikes.Id. at 205 tbl. 9.2.19. 5 PERB 3037 (1972).20. Id.21. This exception to Triborough encompasses otherorganized activity short of actual strikes, including any“concerted stoppage of work or slowdown by publicemployees.” N.Y. Civ. Serv. Law § 209-a.1(e)(emphasis added).22. See LaRivere v. White, 39 OCB 36 (BCB 1987)(Anderson, Arb.) (applying the Triborough Amendment).A provision analogous to the Triborough Amendmentwas adopted in 1998.23. Bd. of Coop. Educ. Servs., 8 PERB 3018 (1975).24. See supra note 19, at 3065 (responding to the argumentthat “‘[a]t the time of economic contraction…the[Triborough] precedent would operate effectively toprevent the managers of public agencies fromconforming to changed circumstances and operatingthose agencies in a business-like manner.’”)7
  8. 8. s t r o o c k & s t r o o c k & l a v a n l l p825. [1975] N.Y. LAWS 1405 § 10 (McKinney); N.Y. PUB.AUTH. §3854. A wage freeze may only be enacted as alast resort, and litigation is pending against the NassauInterim Finance Authority and Nassau County for itsfailure to adhere to that requirement. Carver v. NassauCnty. Interim Fin. Auth., No. 11 Civ. 1614 (E.D.N.Y.filed Apr. 14, 2011).26. EMPIRE CENTER, supra note, at 6.27. N.Y. CIV. SERV. LAW § 209.3(a)-(e).28. Id. at § 209.4(a)-(b), (c)(vi).29. N.Y. CIV. SERV. LAW § 209-a.1(e).30. It reasoned that an award was not an “agreement” asdefined in the Taylor Law. 18 PERB 3073 (1985). Seealso Niagara Cnty. Legislature, 16 PERB 3071, *2 (notingthat an “agreement” is defined in the Taylor law as “theresult of the exchange of mutual promises.”)31. See City of Kingston, 18 PERB 3073 (1985).32. Id. at *3 n.9.33. McMahon, supra note 4 (“Because arbitral awards oftenare based on salaries in adjoining jurisdictions, the law[compulsory arbitration] had a ratcheting-up effect onpolice and firefighter pay across the state.”) See alsoNicole Gelinas, “Curbing Union Excess: Small Steps forNY’s Timid Pols,” NEW YORK POST (Mar. 13, 2011)(“Optimally, Albany should get rid of bindingarbitration. If nobody can agree, let the [TransportWorkers Union] work without a contract (with nowage increases). Workers who don’t like it can quit.”)34. Thomas Kochan, et al., The Long-Haul effects of InterestArbitration: The Case of New York State’s Taylor Law, 63ILR REV. at 6 (2010).35. See Taylor Report, supra note 12, at 102 (expecting thatcompulsory interest arbitration would “be detrimental tothe cause of developing effective collectivenegotiations.”) With respect to voluntary interestarbitration, see id. at 103 (“Voluntary arbitration on anad hoc basis is a desirable course… although it also leadsto binding decisions.”)36. DONOVAN, supra note 17 at 205 tbl. 9.2 (demonstratingtwo strikes in 1967, 26 strikes in 1968, and 13 strikes in1969).37. Id.38. NYCOM, supra note 15 at 10 (“Over the years that thecompulsory arbitration law has been in existence, manybargaining units have sought to rush to arbitration andavoid substantive negotiations.”)39. Kochan, supra note 34, at 26 (“There is no evidencethat, on the whole, arbitration has had a chilling effecton negotiations.”)40. Kochan, supra note 34, at 12.41. Id.42. The Police Benevolent Association, reaching impassefour times, accounted for all three arbitral awards. TheUniformed Firefighters Association reached impassethree times, and the Correction Officers BenevolentAssociation Reached impasse four times. Statistics onfile with the authors.43. Id.44. E.J. McMahon charges without support that thearbitrators tend to be overtly pro-union. See McMahon,supra note 4 (“[t]he arbitration option – invariablyinvoked by unions, not management – made it easier forpoliticians to duck their responsibilities by deferring to‘impartial’ (but often union-friendly) arbitrators”)(quotations in original).45. Id. at 26.46. Kochan, supra note 34, at 16-17. The study comparedadjusted real wages. Police officer wages increased from$20.23 to $21.54, while firefighter wages decreased from$21.75 to $21.60.47. N.Y. Civ. Serv. Law § 209(4)(c)(v)(b).48. Terry O’Neil & E.J. McMahon, Empire Center forNew York State Policy, Special Report SR4-07 TaylorMade: The Cost and Consequences of New York’s Public-Sector Labor Laws 28 n.63 (Oct. 2007). Similarly,NYCOM demands that the term be re-defined toinclude “the ability of a public employer to pay alleconomic costs to be imposed on it by an arbitrationaward without requiring a reduction in…service or anincrease in…taxes.” NYCOM, supra note 15, at 10.49. While campaigning for Mayor in 2001, then-candidateBloomberg explained that “the city alwaysunderestimates revenues because they have to deal withthe unions.” “Sizing up Budget Cuts and AnsweringCriticism about Experience,” N.Y. TIMES, Nov. 1 2001.
  9. 9. STROOCK REPORTS – PUBLIC EMPLOYEE LAWCo-Editors: Alan M. Klinger, Co-Managing Partner, and Dina Kolker, Special Counsel in Stroock’s Litigation andGovernment Relations Practice Groups. The Co-Editors wish to thank Beth A. Norton, Kerry T. Cooperman, LeeM. Leviter and Jason S. Vinokur, associates in Stroock’s Litigation and Government Relations Practice Groups,whose contributions to researching and writing the articles in this issue were invaluable.Protecting Privacy in the Technology Age: The Scopeof GPS Tracking of Public Sector Employees in theWake of U.S. v. JonesSummer 2012IntroductionTechnology has reshaped workplace life. Forthe most part, technological advancements haveenhanced productivity and made the workplacemore efficient. But with progress often comeconcerns, one being that some technologies offernew ways of monitoring employees,1such as theincreasing use by employers of global positioningsystem (“GPS”) technology in vehicles, cellphones, and other equipment, to monitoremployee movements. This scrutiny is distressingand undesirable to many employees, who haverecently seen alarming intrusions on their privacy.Indeed, public sector employees face a greater riskof these “Big Brother” monitoring techniques bytheir public sector employers because FourthAmendment law – prohibiting unreasonablesearches and seizures, and utilized as a touchstonein employment cases – considers public sectoremployees to have a diminished expectation ofprivacy at work.2The implications of such use of GPS technologyhave not eluded the courts – both state and federalcourts have ruled on the constitutionality of GPSmonitoring in various contexts. Most recently, theUnited States Supreme Court decided United Statesv. Jones,3which may positively alter the legallandscape regarding when and how thegovernment may use technology to monitorindividuals.Jones involved the appeal of a convicted criminal,Antoine Jones, who argued that evidence obtainedby the warrantless use of a GPS device placed onhis wife’s personal car violated his FourthAmendment rights.4Although the Courtunanimously affirmed the D.C. Circuit’s decisionto reverse Jones’ conviction, the precise contours ofthe Court’s holding are complex.This article examines the significance of Jones andthe impact it could have on curbing GPSsupervision of public sector employees.5Privacy in the WorkplaceThe Fourth Amendment protects “[t]he right ofthe people to be secure in their persons, houses,papers, and effects, against unreasonable searchesand seizures. . . .”6New York State’s Constitutionprovides an analogous protection, while also
  10. 10. s t r o o c k & s t r o o c k & l a v a n l l pgranting:The right of the people to be secure againstunreasonable interception of telephone andtelegraph communications shall not beviolated, and ex parte orders or warrants shallissue only upon oath or affirmation that thereis reasonable ground to believe that evidenceof crime may be thus obtained, andidentifying the particular means ofcommunication, and particularly describingthe person or persons whose communicationsare to be intercepted and the purpose thereof.7These constitutional principles recognize that allcitizens are entitled to some degree of privacy.When it comes to an employee’s privacy in theworkplace, New York law explicitly recognizessuch a right, albeit a limited one, in specificcontexts. For example, New York law forbidsemployers from videotaping employees inrestrooms, locker rooms and other areas whereemployees change clothing.8Nevertheless, public employees occupy a uniqueposition because they typically are recognized ashaving a lesser expectation of privacy in theworkplace than private employees.9This reducedexpectation of privacy may explain public sectoremployers’ increased use of GPS technology totrack their employees.Two methods favored by employers are targetedGPS searches and blanket GPS searches. Anemployer conducts a targeted GPS search when,based on suspicion that an employee is violatingworkplace rules, the employer installs a GPS trackerto probe for information relating to the potentialviolations. In contrast, a blanket GPS search occurswhen employers – without individualized suspicion– place GPS devices on employer-issued propertyto obtain information. Although targeted GPSsearches have garnered more judicial attention,blanket GPS searches are more worrisome becausethe information gathered from constant GPSmonitoring – even the monitoring of employer-issued equipment – provides a wealth of privateinformation about an employee. With thegrowing use of GPS technology in the workplace,courts have confronted these privacy issues morefrequently.GPS Cases Pre-JonesPrior to the more widespread use of GPStechnology, the Supreme Court dealt with the useof electronic surveillance devices in United States v.Knotts.10In Knotts, the seminal FourthAmendment case in this area, government agentshad placed a beeper in a drum of chloroform totrack its movement.11Agents then monitored a carcarrying the drum using visual surveillance andsignals from the beeper. The Court permitted thisuse of beeper surveillance to track the vehicle.12Justice Rehnquist, writing for the Court, explainedthat “a person traveling in an automobile on publicthoroughfares has no reasonable expectation ofprivacy.”13Therefore, anyone who drives onpublic roads willingly reveals “whatever stops hemade, and the fact of his final destination when heexited from public roads onto private property.”14Although the Supreme Court had not grappledwith the privacy issues surrounding GPStechnology until Jones, New York courts have.The New York Court of Appeals ruled in People v.Weaver that the warrantless use of a GPS device tomonitor a car for approximately two monthsviolated the New York State Constitution’sprovision dealing with unreasonable searches,seizures and interceptions.15In that case, the policeattached a GPS device to defendant Weaver’svehicle without first obtaining a warrant. Thepolice then collected data from the device for 65days and ultimately used it to tie Weaver to aburglary for which he was tried and convicted.In reaching its conclusion, the Weaver courtdistinguished Knotts. Chief Judge Lippman noted10
  11. 11. s t r o o c k & s t r o o c k & l a v a n l l pthat the tracking device in Knotts was primitive andrequired police officers actively to follow thevehicle on which the device was attached. Bycontrast, the GPS is “vastly different andexponentially more sophisticated technology that iseasily and cheaply deployed and has virtuallyunlimited and remarkably precise trackingcapability.”16The court appeared troubled by thisinvasive technology and recognized that althoughGPS monitoring provides certain informationcomprehensively, it lacks the interpretive orcontextual element that only a human can provide.Even though the Weaver court declared the GPSsearch illegal under the New York StateConstitution, it refused to address the issue ofwhether the search violated the United StatesConstitution, because there were no applicablefederal laws or court decisions on topic at the time.New York courts appear less willing to findwrongdoing when the government uses GPStechnology to monitor public employees. This ispossibly because cases involving work-relatedmisconduct of public employees are judged by amore lenient standard than is applied in criminalproceedings. New York’s Appellate Division,Third Department, articulated the more lenientstandard in Cunningham v. New York StateDepartment of Labor.17In Cunningham, the court found that theconstitutional rights of Michael Cunningham, astate employee, were not violated when the NewYork Inspector General’s Office (“OIG”) installeda hidden GPS tracker on Cunningham’s personalcar to determine whether he was skipping work.The OIG was investigating Cunningham forsuspicion of taking unauthorized absences fromwork and falsifying time records. As part of theinvestigation, the OIG installed multiple GPSdevices on Cunningham’s car over the span of 30days. Along with other evidence, the dataextracted from the GPS devices was used todemonstrate Cunningham’s misconduct, for whichthe Commissioner of Labor later terminated him.Cunningham appealed the administrative decision.Justice Lahtinen, writing for the court, observedthat because of Weaver, any GPS evidence gatheredin this case would likely have been suppressed in acriminal trial. However, Justice Lahtinen noted,the Weaver standard is not controlling when apublic employer is investigating work-relatedmisconduct. Such cases are “judged by thestandard of reasonableness under all thecircumstances, both as to the inception and scopeof the intrusion.”18Moreover, this rule requires“balancing the deterrent effect of exclusion againstits detrimental impact on the process ofdetermining the truth.”19Finally, the clarity of thelaw at the time the government official acts factorsinto this assessment.Applying this standard, the court found that theinstallation of the GPS was reasonable as was thescope of its use. Two dissenting justices said thatthe GPS monitoring was warranted at its inception,but that collecting data for 30 days was too broad inscope. The dissent argued that the government’sinterest in Cunningham’s whereabouts extendedonly to his business hours, yet the device collecteddata every second of every day for over a month,including during a week-long family vacation.20Understanding the implications that GPStechnology has on privacy, the dissenting justicesfelt that “deterring such intrusive conductoutweigh[ed] the detrimental impact on the processof determining the truth.”21Although the Weaver and Cunningham decisionspoint in opposite directions, the Supreme Court’srecent decision in Jones may serve to unify the twocases while providing a new argument againstOrwellian GPS tracking by employers.United States v. JonesJones, the owner and operator of a Washington,D.C. nightclub, was suspected of trafficking in11
  12. 12. s t r o o c k & s t r o o c k & l a v a n l l pnarcotics. The FBI and Metropolitan PoliceDepartment targeted him in a joint investigation.After gathering information on him using variousinvestigative techniques, the officers applied for awarrant authorizing the installation of a GPS devicefor a Jeep registered to Jones’ wife. A warrant wasissued that required the GPS tracker to be installedwithin ten days in Washington, D.C. The devicewas ultimately mounted in Maryland on theeleventh day. Over the next 28 days, the devicetracked the vehicle’s movements.Jones was indicted for various drug crimes basedin part on the recordings of the GPS. Before trial,he moved to suppress those recordings as evidence.The district court excluded some of the data, butdeemed much of it admissible, citing the Knottsprinciple that a person traveling in an automobileon a public road has no reasonable expectation ofprivacy in his movements.22Jones’ initial trialproduced a hung jury on one count of theindictment. However, he was eventuallyconvicted and sentenced to life imprisonment.The Court of Appeals for the D.C. Circuitreversed his conviction on the grounds that theGPS data should have been excluded as a FourthAmendment violation.The issue before the Supreme Court was“whether the attachment of a Global-Positioning-System (GPS) tracking device to an individual’svehicle, and subsequent use of that device tomonitor the vehicle’s movements on public streets,constitutes a search or seizure within the meaningof the Fourth Amendment.”23A majority of theCourt joined Justice Scalia’s narrowly craftedopinion, which applied a “common-lawtrespassory” test.24Under this test, physicaloccupation of private property for the purpose ofobtaining information qualifies as a search.25Here,the installation of the GPS and extraction of datafrom it fell within the standard. Importantly, theCourt refused to address an alternative argumentthat was waived by the Government: even if theattachment and use of the GPS was a search,because the officers had probable cause it waslawful under the Fourth Amendment.In contrast, Justice Alito, who authored aconcurring opinion joined by the remainingJustices,26came to the same conclusion using the“reasonable expectation of privacy” test espoused inKatz v. United States.27Justice Alito argued that theKatz Court, by holding that a physical trespass wasno longer required for a Fourth Amendmentviolation, abandoned the “common-lawtrespassory” test entirely.28Therefore, Justice Alitoconsidered “whether [Jones’] reasonableexpectations of privacy were violated by the long-term monitoring of the movements of the vehiclehe drove.”29Without determining the precisepoint at which the GPS monitoring became asearch, Justice Alito contended that four weeks ofconstant observation certainly offends a person’sreasonable expectation of privacy. He chidedJustice Scalia for relying on a common-law privacydoctrine that could not possibly comprehendpresent GPS technology – facetiously suggesting asa possible 18th-century analog a case where aconstable hid in a coach to monitor the movementsof the coach’s owner. Justice Alito’s rejoinder wasthat “this would have required either a giganticcoach, a very tiny constable, or both – not tomention a constable with incredible fortitude andpatience.”30Nevertheless, the difficulty in determining thefull implications of Jones lies not with the disputebetween Justice Scalia and Justice Alito, but withJustice Sotomayor’s concurrence. On the onehand, she joined the majority and agrees with the“common-law trespassory” theory “that a searchwithin the meaning of the Fourth Amendmentoccurs, at a minimum, ‘[w]here as here, theGovernment obtains information by physicallyintruding on a constitutionally protected area.’”31In Justice Sotomayor’s view, reduction of theFourth Amendment to the Katz standard alone12
  13. 13. s t r o o c k & s t r o o c k & l a v a n l l p“erodes that longstanding protection for privacyexpectations inherent in items of property thatpeople possess or control.”32On the other hand, Justice Sotomayor appears tobe sympathetic to Justice Alito’s conclusion thatlonger-term GPS monitoring will offendreasonable expectations of privacy in manyinstances. However, although her concurrencenotes that the dangers of GPS technology include“making available at a relatively low cost such asubstantial quantum of intimate information aboutany person whom the Government, in itsunfettered discretion, chooses to track,33it alsonotes that the technological advances that havemade nontrespassory surveillance feasible will alsoshape (and perhaps lessen) society’s privacyexpectations. Hence, in future cases JusticeSotomayor may be willing to join the segment ofthe Court that sided with Justice Alito, leaving thecurrent state of the law murky at best. Still, underthe facts of Jones, all of the Justices were loathe, forvarious reasons, to sign off on this intrusive,computerized monitoring technique.Implications for Public Sector EmployeesAlthough the lines drawn and alliances formed inJones are muddled, the opinions provide a hopefuloutlook for public sector employees who wish tosee “Big Brother” dissipate. Recall that inCunningham, the Appellate Division, ThirdDepartment, upheld the installation and subsequentGPS tracking of a public sector employee’s personalautomobile. In concluding that the installation anduse of the GPS was reasonable, one factor the courtexamined was the clarity of the law at the time theGPS was installed. The court remarked that “at theinception of the use of a GPS on [Cunningham’s]car . . . the weight of authority pointed in thedirection that use of a GPS was not a FourthAmendment violation even in the criminal lawcontext . . . .”34After Jones, the result inCunningham no longer appears viable. The“common-law trespassory” test adopted by themajority in Jones suggests that the Governmentengages in a search, and that it should get a warrant,any time it installs a GPS device on privateproperty.35Given the numerous GPS installationsin Cunningham – all Fourth Amendment searches –it is likely that Cunningham would be decideddifferently today.Even in the absence of a physical trespass, publicsector employees might be able to successfully curbgovernment monitoring of private property as aviolation of their reasonable expectations ofprivacy.36No member of the Court in Jonesspecifically foreclosed the possibility that GPStracking in and of itself violates reasonableexpectations of privacy. Moreover, among JusticeSotomayor and the three Justices who joinedJustice Alito, there may well be a majority thatwould rule that long-term GPS investigations, bytheir very nature, infringe on an individual’sreasonable expectations of privacy. Such anargument may be invoked in future challenges toblanket GPS searches. The increased use andprolonged nature of blanket GPS surveillanceappears to fit the mold of the kind of long-termmonitoring technique that infringes on privacyexpectations. Although the Court did notarticulate a bright-line test indicating the precisepoint at which GPS surveillance violatesexpectations of privacy, there are suggestions in thedecision that shorter-term monitoring would notdisturb such expectations.37Nevertheless, theCourt also remarked that privacy expectations areconstantly shifting with respect to newtechnological devices.38The Court’s acknowledgement in Jones of thevarying, and evolving, privacy expectations withrespect to new technologies, provides a glimmer ofhope that the Court may come to decide thatpublic employees have a legitimate privacy interestin employer-issued property as well as in privateproperty. Yet, in light of the Court’s current13
  14. 14. s t r o o c k & s t r o o c k & l a v a n l l papproach to dealing with the scope of the FourthAmendment’s privacy protection for governmentemployees in the workplace, a clear resolution doesnot seem likely any time soon.39Although Jonesleaves many questions unanswered, it can be seen asan important first step in rebuilding the privacyprotections eroded by the GPS monitoring ofpublic sector employees. At the very least, wherean employee’s private property is concerned, stateemployees now have strong arguments thatemployer use of GPS tracking is unreasonable.For More InformationAlan M. Klinger212.806.5818aklinger@stroock.com1. William A. Herbert & Amelia K. Tuminaro, The Impactof Emerging Technologies in the Workplace: Who’s Watchingthe Man (Who’s Watching Me)?, 25 Hofstra Lab. & Emp.L.J. 355, 360 (Spring 2008).2. Caruso v. Ward, 72 N.Y.2d 432, 439 (1988) (internalcitations omitted).3. United States v. Jones, 132 S. Ct. 945 (2012).4. Id. at 948. Importantly, Jones relates only to theGovernment’s use of GPS devices on an employee’sprivate property. Id. at 949 (defining a search as “[t]heGovernment physically occup[ying] private property forthe purpose of obtaining information”) (emphasisadded).5. Although there have been no Supreme Court decisionson GPS technology as it relates to government-issuedproperty, other Supreme Court precedent indicates thatit is unlikely that public sector employees have a FourthAmendment privacy interest in such property. InO’Connor v. Ortega, the Supreme Court attempted toelucidate a standard on the scope of Fourth Amendmentprotection for government employees in the workplace.480 U.S. 709 (1987). The Court held that “[i]ndividualsdo not lose Fourth Amendment protections merelybecause they work for the government instead of aprivate employer,” but a majority was unable to agreeon a framework for Fourth Amendment claims againststate employers. Id. at 717. Instead, a four-Justiceplurality held that a two-step analysis applies. A courtmust first consider the “operational realities of theworkplace” to determine whether an employee’sconstitutional rights are involved. Id. Next, if anemployee has a legitimate expectation of privacy,“public employer intrusions on the constitutionallyprotected privacy interests of government employees fornoninvestigatory, work-related purposes, as well as forinvestigations of work-related misconduct, should bejudged by the standard of reasonableness under allcircumstances.” Id. at 725-26. Recently, the SupremeCourt employed O’Connor as guidance in City of Ontariov. Quon, 130 S. Ct. 2619 (2010), where it ruled – on thespecific facts of the case – that a state employee had nolegitimate expectation of privacy in text messages sentfrom a government-issued pager. The Court refused toestablish whether a government employee enjoys areasonable expectation of privacy when usinggovernment-issued equipment and instead opted tocabin its opinion at the risk of “elaborating too fully onthe Fourth Amendment implications of emergingtechnology before its role in society has become clear.”Id. at 2629. Thus, without a clear standard, and a casefinding no legitimate expectation of privacy in agovernment-issued pager, it appears that the SupremeCourt is less apt to find privacy interests in government-issued property.6. U.S. Const. amend IV.7. N.Y. Const. art. I, § 12.8. N.Y. Lab. Law § 203-c (2008).9. Caruso, 72 N.Y.2d at 439 (internal citations omitted).10. 460 U.S. 276 (1983).11. Knotts did not challenge the warrantless installation ofthe beeper because he believed he lacked standing tomake such a challenge. Id. at 279 n.1. Although theCourt noted that several Courts of Appeals hadapproved warrantless installations, it refused to rule onthat issue. Id.12. Id. at 285.13. Id. at 281.14. Id. at 282.15. 12 N.Y.3d 433 (2009).16. Id. at 441.17. 933 N.Y.S.2d 432 (3d Dep’t. 2011).18. Id. at 435.19. Id.20. Id. at 437 (Spain, J., dissenting).21. Id.22. See Knotts, 460 U.S. at 282.23. Jones, 132 S. Ct. at 948.24. Chief Justice Roberts and Justices Kennedy, Sotomayorand Thomas joined Justice Scalia’s opinion.14
  15. 15. s t r o o c k & s t r o o c k & l a v a n l l p1525. Jones, 132 S. Ct. at 949.26. Justices Breyer, Ginsburg and Kagan joined JusticeAlito’s opinion.27. 389 U.S. 347 (1967). Katz involved the use of anelectronic eavesdropping device on a public phonebooth. Although the device did not physically intrudeon the area occupied by a caller, police officers wereable to record a target’s conversations. The Court heldthat the Fourth Amendment protects all areas where aperson has a reasonable expectation of privacy evenwhere there is no physical trespass. Id. at 358.28. Acknowledging that later cases beginning with Katzhave deviated from the “common-law trespassory” testin favor of a “reasonable expectation of privacy”standard, Justice Scalia cautioned that Katz did noteliminate the former. Id. at 950. As support for thisposition, Justice Scalia references Justice Brennan’sconcurring opinion in Knotts, stating “that, when theGovernment does engage in physical intrusion of aconstitutionally protected area in order to obtaininformation, that intrusion may constitute a violation ofthe Fourth Amendment.” Knotts, 460 U.S. at 286(Brennan, J., concurring).29. Jones, 132 S. Ct. at 958 (Alito, J., concurring).30. Jones, 132 S. Ct. at 958 n.3 (Alito, J., concurring).31. Id. at 954 (Sotomayor, J., concurring).32. Id. at 955.33. Justice Sotomayor, like Justice Lahtinen in Weaver,recognizes the plethora of private information that GPStracking provides. Id. at 955-56 (“GPS monitoringgenerates a precise, comprehensive record of a person’spublic movements that reflects a wealth of detail abouther familial, political, professional, religious, and sexualassociations.”) Furthermore, knowledge that theGovernment may be watching chills other importantassociational and expressive freedoms. Id. at 956.34. Cunningham, 933 N.Y.S.2d at 436 n.4.35. Several cases decided since Jones have confirmed thisnotion. See, e.g., Paige v. New York City Police Dep’t,No. 10-CV-3773 (SLT)(LB), 2012 WL 1118012, at *3(E.D.N.Y. Mar. 30, 2012) (finding that electronicsurveillance similar to GPS monitoring conductedwithout a warrant constituted a violation of the FourthAmendment); State v. Adams, No. 4964, 2012 WL1416414, at *3 (S.C. Apr. 25, 2012) (same). But see,United States v. Amaya, No. CR 11-405-MWB, 2012WL 1188456, at *4 (N.D. Iowa Apr. 10, 2012) (“Jonesleft open the question of whether a warrant is requiredfor GPS monitoring or if . . . warrantless GPSmonitoring is lawful when officers have reasonablesuspicion or probable cause to believe that a vehicle isinvolved in illegal activity.”)36. At least one court commented that the five concurringjustices in Jones might use the “reasonable expectation ofprivacy” test to find a Fourth Amendment violationwhen the government conducts electronic surveillanceon a person’s movements for an extended period of timewithout a warrant. In re Application of United States for anOrder Pursuant to Title 18, U.S.C. § 2703(D) to DiscloseSubscriber Information and Cell Site Information, No. 12-MJ-1084RBC, 2012 WL 989638, at *1 (D. Mass. Mar.23, 2012). See also, State v. Zahn, No. 25584, 2012 WL862707, at *6 (S.D. 2012) (deciding that under the“reasonable expectation or privacy test,” lawenforcement violated the defendant’s subjectiveexpectation of privacy in his movements by attaching aGPS to his vehicle and monitoring his movements for26 days); Montana State Fund v. Simms, 270 P.3d 64, 71(“Montanans do not reasonably expect that [the] stategovernment, in its unfettered discretion and without awarrant, is recording and aggregating their everydayactivities and public movements in a manner whichenables the State to ascertain and catalog their politicaland religious beliefs, their sexual habits, and other privateaspects of identity.”)37. See Jones, 132 S. Ct. at 964 (Alito, J., concurring)(“[R]elatively short-term monitoring of a person’smovements on public streets accords with expectationsof privacy that our society has recognized asreasonable.”)38. Id. at 963 (“The availability and use of these and othernew devices will continue to shape the average person’sexpectations about the privacy of his or her dailymovements.”)39. See supra note 5.
  16. 16. STROOCK REPORTS – PUBLIC EMPLOYEE LAWCo-Editors: Alan M. Klinger, Co-Managing Partner, and Dina Kolker, Special Counsel in Stroock’s Litigation andGovernment Relations Practice Groups. The Co-Editors wish to thank Beth A. Norton, Kerry T. Cooperman, LeeM. Leviter and Jason S. Vinokur, associates in Stroock’s Litigation and Government Relations Practice Groups,whose contributions to researching and writing the articles in this issue were invaluable.A Hopeful Outlook on Privacy Rights for PublicSector EmployeesSummer 2012IntroductionThe mantra is often repeated that publicemployees have a greatly diminished privacyinterest while on the job.1Recent events broughtrenewed focus on the scope of such rights, possiblyevidencing (even in the face of an adverse decision)a shift in how these rights will be viewed goingforward. First, this article discusses the controversysparked by the publication of Teacher DataReports (“TDRs”) by the Board of Education ofthe City School District of the City of New York(“BOE”), and the recent willingness of staterepresentatives and courts to consider the privacyinterest of public employees in policy decisions. Itwill also address American Federation of State Countyand Municipal Employees (“AFSCME”) Council 79 v.Scott,2a recent Florida case where a federal judgestruck down – as a Fourth Amendment violation –a program that would have required many stateemployees to undergo random drug testing.Teacher Data ReportsBeginning in the 2007-2008 school year, theBOE launched a pilot program designed to test apossible teacher performance evaluation tool.Teachers consented to participate in this programbased on the BOE’s assurance that any informationmeasuring teacher performance would be keptconfidential. Teachers were then ranked – inreports known as TDRs – utilizing a complexformula that factored in student demographics aswell as certain standardized test scores. AlthoughCity officials defended these reports, many otherscriticized them as unreliable. Independent experts,school administrators and teachers all expressedconcerns over the large margins of error andotherwise flawed methodology of the rankings.Specifically, the rankings were compiled from asmall sample size and contained factual errors andomissions, among numerous other problems. Forexample, fifth grade teachers in some schools“departmentalize,” meaning there is one teacherwho teaches only English and Language Arts(“ELA”) to the entire 5thgrade and another teacherwho teaches all of the math classes. Some teachersreceived two scores - one for ELA and one formath - even though each teacher only taught oneof these subjects.In 2010, pursuant to New York’s Freedom ofInformation Law (“FOIL”), various newsorganizations requested the release of these TDRs.After the BOE approved their requests, the UnitedFederation of Teachers (“UFT”) objected. The
  17. 17. s t r o o c k & s t r o o c k & l a v a n l l pUFT sued the BOE in state court to enjoin thedissemination of TDRs, unless the BOE redactedthe reports and removed any teachers’ names. TheBOE had redacted teacher names in response toprior FOIL requests. The UFT argued, amongother things, that releasing the teachers’ names wasan unwarranted invasion of their personal privacy.However, the court rejected this argument anddetermined the BOE could reasonably haveconcluded that releasing the teachers’ names wasnot an intrusion on the teachers’ personal privacy.3The UFT appealed.Although the appellate court found that the trialcourt incorrectly reviewed the BOE’s decision torelease the reports, it nonetheless held that theTDRs should be disclosed under FOIL.4Thecourt stated that TDRs do not fall within either ofFOIL’s statutory exemptions for intra-agencymaterials or personal privacy.5While the courtacknowledged that releasing the teachers’ nameswould implicate privacy interests, it found onbalance, the public interest in disclosure ofunredacted information outweighed the privacyinterests at stake.6The conflict has continued since the TDRs’release. Proponents, including Mayor MichaelBloomberg, continue to believe that TDRs,though now abandoned, contain valuableinformation that the public has a right to see. Onthe other hand, despite warnings by the BOEagainst using these rankings to draw specificconclusions about individual teachers, teachers arestill worried – and with good cause. Since therelease of the TDRs, teachers in New York Cityhave become subject to unfair attacks withsegments of the media maligning educators basedupon an uninformed view of rankings that arebased on reports that are fundamentally flawed.7Within 24 hours of the posting of the TDRs,reporters singled out a Queens English-as-a-SecondLanguage teacher, rushed to her parents’ home tolocate her, eventually found her home in a “privatehousing development,” and harassed her forcomment.8She declined to speak with reporters,and even had to call the police twice to have thereporters removed.9The harassment continuedfollowing this event, when an article described theteacher as “the city’s worst teacher.” This exampleillustrates why many believe the public shaming ofteachers after the release of the TDRs demonstrateswhy the release went too far and was ill-advised.Even Bill Gates, hardly a defender of publicservants, decried the release of TDRs as a“capricious exercise in public shaming.”10Faced with this polarized situation, GovernorAndrew Cuomo brought the issue to the Statelegislature. Recognizing that evaluations for somecity employees – such as firefighters and policeofficers – are already shielded though the majorityare not,11Governor Cuomo recognized the needfor a better balance between the teacher’s right toprivacy, the parents’ right to know, and the public’sawareness. Governor Cuomo produced alegislative compromise rejecting MayorBloomberg’s position that there should be fulldisclosure of teacher evaluations.12The law reflectsthe recognition that it would become moredifficult to attract teachers to the profession – anecessary and important one – if they risk beingsubject to potential persecution. It requires publicdisclosure of the final annual rating of teachers andprincipals.13Personally identifying information forany teacher or principal may not be disclosed,except to parents and legal guardians under limitedcircumstances.14Parents and legal guardians mayonly request a review of the ratings and scores forthe teachers and principal of the school to whichthe student is assigned for the current school year.15A recent Court of Appeals decision, Harbatkin v.N.Y.C. Dep’t of Records & Info. Servs.,16reinforcesthe propriety of the approach taken by policymakers. Harbatkin involved a historian’s FOILrequest for unredacted transcripts of interviewsconducted during the middle of the twentiethcentury with informants who provided the BOEwith information about teachers it suspected were17
  18. 18. s t r o o c k & s t r o o c k & l a v a n l l pcurrent or former members of the CommunistParty.17The City, which promised certaininformants that their reports would be keptconfidential, was apprehensive that providing thematerials would invade the privacy of the peopleidentified in them. The First Department agreedand recognized the importance of such promises.Although the Court of Appeals appreciated theimpediment that working with redacted transcriptswould cause, it nonetheless concurred with theFirst Department and concluded that the City’spromise of confidentiality outweighed thishardship: “We find it unacceptable for thegovernment to break that promise, even after allthese years.”18Thus, the Court highlighted thesignificance of promises of confidentiality byordering disclosure of the reports, but permittingthe City to redact details pertaining to informantswho were guaranteed confidentiality.19The promising tone set by New Yorkpolicymakers and now the Court of Appeals –recognizing the potentially harmful side of suchdisclosures – continued with the recent decision bya federal judge in Florida that struck down a stateprogram that would have mandated random drugtesting for state employees.AFSCME Council 79 v. ScottIn 2011, Florida’s Governor, Rick Scott, issuedan Executive Order (“EO”) demanding quarterlydrug testing of approximately 85,000 stategovernment workers, as well as all prospective newhires. AFSCME, which represents 40,000employees that would be covered by the EO,maintained that this policy is unconstitutional. As aresult, AFSCME sued, alleging that the EOviolated the Fourth Amendment’s prohibition ofunreasonable searches.In April, U.S. District Court Judge UrsulaUngaro ruled that Governor Scott’s EO violatedthe Fourth Amendment’s bar on unreasonablesearches and permanently enjoined the state fromimplementing the order.20Guided by priorSupreme Court cases that considered theconstitutionality of drug testing,21Judge Ungaroreiterated that absent a special need or someextraordinary public interest, random, suspicionlessdrug testing constituted an unreasonable search.22“The fundamental flaw of the EO,” according tothe court, was “that it infringe[d] privacy interestsin pursuit of a public interest which . . . [was]insubstantial and largely speculative.”23GovernorScott asserted that the EO aimed to save taxpayermoney and promote office productivity.24Yet,without documented instances of a drug problemamong state employees, mere conjecture that aproblem existed was insufficient to outweigh theemployees’ privacy interests.25Any evidence thatwas presented failed to convince the court that stateemployees had a diminished privacy interest in thiscase.26Accordingly, this decision suggests that theprivacy rights of public employees will not becasually overlooked in the future.Looking AheadThe UFT’s zealous response to, and critique of,the BOE’s decision to release unredacted TDRshas been vindicated by the recent steps taken bystate policymakers and the courts, which hopefullysignal a more humane and nuanced approach toprotecting the privacy rights of public employees.The AFSCME decision also offers the possibilitythat these rights will be regarded more favorablyaround the country than they have been in thepast. Taken together, these two events providehope for public employees that the pendulum ofprivacy is swinging back to a more rational place,providing greater protection for their privacy rights.18
  19. 19. s t r o o c k & s t r o o c k & l a v a n l l p19For More InformationAlan M. Klinger212.806.5818aklinger@stroock.com1. Caruso v. Ward, 72 N.Y.2d 432, 439 (1988) (internalcitations omitted).2. No. 11-civ-21976-UU, 2012 WL 1449644 (S.D. Fl.Apr. 26, 2012).3. Mulgrew v. Bd. of Educ. of the City School Dist. of the Cityof N.Y., 31 Misc.3d 296 (N.Y. Sup. Ct. 2011).4. Mulgrew v. Bd. of Educ. of the City School Dist. of the Cityof N.Y., 928 N.Y.S.2d 701, 702 (1st Dep’t 2011).5. Id. at 703.6. Id.7. Fernanda Santos and Robert Gebeloff, “TeacherQuality Widely Diffused, Ratings Indicate,”N.Y. TIMES, Feb. 24, 2012,http://www.nytimes.com/2012/02/25/education/teacher-quality-widely-diffused-nyc-ratings-indicate.html.8. Louis Freedberg, Publishing TeacherEffective Rankings, Pioneered in California,Draws More Criticism, EDSOURCE.ORG,http://www.edsource.org/today/2012/pioneered-in-california-publishing-teacher-effectiveness-rankings-draws-more-criticism/6732.9. Id.10. Bill Gates, “Shame Is Not the Solution,” N.Y. TIMES,Feb. 22, 2012, http://www.nytimes.com/2012/02/23/opinion/for-teachers-shame-is-no-solution.html?_r=1.11. Section 50-a of New York’s Civil Rights law mandatesthat all personnel records used to evaluate theperformance of firefighters, police officers andcorrections officials “shall be considered confidential andnot subject to inspection or review without the expresswritten consent [of the individual] . . . except as may bemandated by lawful court order.” N.Y. Civ. RightsLaw § 50-a (McKinney 2012).12. N.Y. Senate Bill No. 7792, Two Hundred Thirty-FifthLegislative Session (2012).13. Id.14. Id.15. Id.16. 2012 N.Y. Slip Op. 04277 (June 5, 2012).17. Id. at *1.18. Id. at *7.19. Id. at *5.20. AFSCME Council 79, No. 11-civ-21976-UU, 2012 WL1449644, at *3 (S.D. Fl. Apr. 26, 2012). The court didnot reach the issue of whether prospective employeescan be subjected to drug testing pursuant to the EO. Id.at *37.21. The cases are Skinner v. Ry. Labor Executives’ Ass’n, 489U.S. 602 (1989), Nat’l Treasury Emps. Union v. VonRaab, 489 U.S. 656 (1989), Vernonia Sch. Dist. 47j v.Acton, 515 U.S. 646 (1995), and Chandler v. Miller, 520U.S. 305 (1997).22. Id. at *16. Mandatory drug testing for safety-sensitivejobs is constitutional. See e.g., Skinner, 489 at 628 (1989)(holding that drug testing of railroad employees wasjustified because of the potential hazards involved inrailroad operations), Nat’l Treasury, 489 at 668-69 (1989)(permitting drug testing of U.S. Customs officialsbecause they are directly involved with druginterdiction). Governor Scott’s EO applied to bothsafety sensitive and non-safety sensitive jobs.23. Id. at *33.24. Id. at *21.25. Id. at *33 (“The EO does not identify a concrete dangerthat must be addressed by suspicionless drug-testing ofstate employees, and the Governor shows no evidenceof a drug use problem at the covered agencies.”)26. Id. at *29.
  20. 20. STROOCK REPORTS – PUBLIC EMPLOYEE LAWCo-Editors: Alan M. Klinger, Co-Managing Partner, and Dina Kolker, Special Counsel in Stroock’s Litigation andGovernment Relations Practice Groups. The Co-Editors wish to thank Beth A. Norton, Kerry T. Cooperman, LeeM. Leviter, and Jason S. Vinokur, associates in Stroock’s Litigation and Government Relations Practice Groups,whose contributions to researching and writing the articles in this issue were invaluable.State Court Appellate Division: Health and HospitalEmployees Have No Standing to Sue under Health andSafety RegulationsSummer 2012IntroductionThe Appellate Division, First Department hasruled that public employees may be deprived of theopportunity to file a lawsuit in the courts to protecteither their own health, safety and welfare.1In thatcase, Roberts v. Health and Hospitals Corp, 87 A.D.3d311 (1st Dept., 2011), three groups of petitioners(elected officials, labor union representatives andunion members) asserted that the decision of theHealth and Hospitals Corp. (“HHC”) to abolishseveral trade positions (including electricians,carpenters and laborers) would create unsafeconditions for patients and staff members whoremain employed at the affected facilities andthereby violates HHC’s statutory obligation tomaintain its facilities in a safe condition.The First Department held that petitionerslacked standing to challenge the purportedviolations. More troubling is that in reaching thisconclusion, the Court found that because theLegislature gave HHC discretion to determinenon-managerial staffing levels, “HHC’s decisionsregarding staffing levels are beyond judicialreview.”2Such a broad statement threatens toimmunize government action from judicial review,essentially preventing employees from challengingthe determinations of administrative agencies,public bodies or officers, as currently permitted byArticle 78 of the CPLR.This article analyzes problems caused by theRoberts decision and suggests ways to limit itsimpact.StandingStanding – whether the party asserting a claimhas the right to do so – is a threshold matter thattypically is considered at the outset of any litigation.If a litigant has standing, they have access to thecourts to adjudicate the merits of their dispute.Without standing, they do not.New York courts have established a two-parttest to determine whether a party has standing tochallenge a governmental action. First, thepetitioner must demonstrate “injury in fact,”meaning that he or she “will actually be harmed bythe challenged administrative action.”3Such injurymust be personal to the party challenging theaction. It must be “distinct from that of the generalpublic.”4Second, the injury must fall within the“zone of interests” promoted or protected by the
  21. 21. s t r o o c k & s t r o o c k & l a v a n l l pstatutory provision under which the agency hasacted.5The “zone of interests” analysis limits thepersons who may challenge an administrativeaction to those whose concerns the Legislaturesought to advance or protect.6This second prongof the standing test is designed to ensure “thatgroups whose interests are only marginally relatedto, or even inconsistent with, the purposes of thestatute cannot use the courts to further their ownpurposes at the expense of the statutory purposes.”7In Roberts, respondent HHC specificallychallenged the standing of union petitioners. TheFirst Department found that petitioners failed tosatisfy either prong of the standing test. Withregard to “injury in fact,” the Court found thatpetitioners’ claims of “imminent” risk from“smoke, fire, bacterial, toxic and structuralhazards,” was too speculative to constitute actualinjury. Petitioners’ claims, the Court said, assertedonly threatened violations of the Public HealthLaw; they did not reflect actual violations.Moreover, the asserted injury to employees whoremained in the affected facilities was not distinctfrom that of the public at large who utilize theHHC facilities.As for the “zone of interest,” the FirstDepartment determined that employees were notthe target audience, by applying a constrictedreading of the regulations cited by petitioners. TheCourt stated that “[a]ny benefits the HHC staffderives from those regulations are incidental.” TheCourt pointed to regulations requiring thathospitals “be operated and maintained to ensure thesafety of patients” (10 NYCRR 405.24), andregulations requiring that the ventilation systems“provide for patient or resident health andcomfort” (10 NYCRR 702.1(d)(1)). The FirstDepartment contended the HHC employees werenot protected by those regulatory provisionsbecause they do not specifically mention the HHCemployees. In reaching this conclusion, the FirstDepartment dismissed the relevance of other safetyand maintenance regulations that do not mentionpatients or staff, by concluding that such regulationswere not promulgated for the benefit of the staff.The First Department’s reasoning, particularly asit concerns the “zone of interest,” stands in starkcontrast to some of its own recent decisions also inthe public employment context. In Mulgrew v.Board of Education, 75 AD3d 412 (1st Dept. 2010),the First Department found that the UnitedFederation of Teachers (“UFT”) had standing tochallenge government action, specifically theclosing of schools, under the Education Law, notonly because certain of its members (chapterleaders) were mentioned in the law in question, butalso because…those UFT members who areemployed at the schools proposed tobe phased out have an interest in thematter that would give them standingto sue. Further, the interests involved– school closure and the integrity ofthe school closure process – aregermane to the UFT’s organizationalpurpose, thereby making the union anappropriate representative of thoseinterests.8Just as the Education Law is primarily aimed ateducating students, so are the HHC statute andrelated health and safety provisions primarily aimedat ensuring the safety of patients. As demonstratedin Mulgrew, however, the “zone of interest”concept can and should be broader than theprimary beneficiary of the law. It remains to beseen whether the First Department’s narrowinterpretation in Roberts signals a change in theCourt’s interpretation of standing precedent orwhether it is an anomaly, specific to the facts inRoberts, particularly as the Court of Appeals hasdeclined to resolve the apparent inconsistency atthis point in time.21
  22. 22. s t r o o c k & s t r o o c k & l a v a n l l pJusticiabilityAlthough the First Department could haveended its analysis of the case with standing, it choseto opine in dicta on whether HHC’s staffingdecisions presented a justiciable controversy – thatis, is this a matter appropriate for the courts todecide? After engaging in a lengthy discussion ofthe separation of powers, the First Departmentconcluded that HHC’s decisions regarding staffinglevels are beyond judicial review because thereexists no statute or regulation that requires HHC toemploy a specific level of maintenance staff. TheCourt held that “neither the petitioners nor thecourts should be permitted to substitute theirjudgment for the discretionary management ofpublic business by public officials.”9The decision in Roberts marks a departure fromwell-established New York law on the issue ofjusticiabililty. As the First Department noted inFreidus v. Guggenheimer, 57 AD2d 760, 761 (1stDept. 1977) (citing Mandel v. Bd. of Regents, 250NY 173, 176 (1928)), “[d]iscretionary power is notabsolute; it is subject to the limitation that it cannotbe exercised arbitrarily.”Indeed, one of the stated statutory purposes ofArticle 78 of the CPLR is to determine whetherthe discretionary actions of government arearbitrary and capricious. CPLR 7803(3). TheLegislature has struck the balance between theexecutive and judicial branches by providing fordeferential but substantial judicial review ofdiscretionary acts. Not only are such questions thusjusticiable, but the appropriate standard of review isblack letter law; a court will not disturbdiscretionary acts of government unless they arearbitrary, capricious or an abuse of discretion. Pellv. Bd. of Educ., 34 NY2d 222, 232 (1974). Thisaffords those adversely impacted by governmentalacts the opportunity to seek relief in a court of law.Looking AheadIt is unclear how courts will interpret Roberts andwhether it will be allowed to overturn decades ofestablished precedent. The admonition by the FirstDepartment that the court should not substitute itsjudgment for that of the agency is not a reason toabstain from review of discretionary acts. Rather, itshould serve to caution future courts as to theproper application of Article 78 review. This isparticularly true where the issue is one of healthand safety. The Taylor Law itself recognizes thatsuch issues require a balance and that managementprerogative must bend to negotiation whenmanagement’s discretionary acts translate intohealth and safety concerns for public employees.Unions should be on the lookout for the right case,particularly in the area of health and safety, to takeback up to the First Department or the Court ofAppeals so as to clarify that it is permissible forcourts to review the discretionary acts ofgovernment.For More InformationAlan M. Klinger212.806.5818aklinger@stroock.com1. Petitioners sought leave from the Court of Appeals forpermission to appeal the First Department’s decision.The Court of Appeals has now denied leave.2. Roberts, 87 A.D.3d at 322.3. New York State Assn. of Nurse Anesthetists v. Novello, 2NY3d 207, 211 (2004).4. Matter of Transactive Corp. v. New York State Dept. ofSocial Servs., 92 NY2d 579, 587 (1998).5. Novello, 2 NY3d at 211. Unions are oftenunincorporated associations. As such, standing is foundwhere there is a harmful effect on at least one memberand the “zone of interests” must be germane to itspurpose.22
  23. 23. s t r o o c k & s t r o o c k & l a v a n l l p236. Soc’y of Plastics Indust., Inc. v. Cty. Of Suffolk, 77 NY2d761, 773-74 (1991).7. Id. at 774.8. Id. at 413.9. Roberts, 87 A.D.3d at 323.
  24. 24. STROOCK REPORTS – PUBLIC EMPLOYEE LAWCo-Editors: Alan M. Klinger, Co-Managing Partner, and Dina Kolker, Special Counsel in Stroock’s Litigation andGovernment Relations Practice Groups. The Co-Editors wish to thank Beth A. Norton, Kerry T. Cooperman, LeeM. Leviter and Jason S. Vinokur, associates in Stroock’s Litigation and Government Relations Practice Groups,whose contributions to researching and writing the articles in this issue were invaluable.Negotiating “No-Layoff” Clauses in the Aftermath ofJohnson City Professional Firefighters Local 921 v.Village of Johnson CitySummer 2012IntroductionThe New York Court of Appeals recentlyhanded down a decision that should cause bothpublic and private sector unions to take a hard lookat their collective bargaining agreements. Divided4-3, the Court in Johnson City Professional FirefightersLocal 921 v. Village of Johnson City ruled that aclause stating that “[t]he Village shall not lay-off anymember of the bargaining unit during the term ofthis contract” was not arbitrable because it did notexplicitly prohibit the Village from laying offfirefighters due to budgetary strain.1In a departurefrom its past decisions concerning the arbitrabilityof labor disputes, the Court declared that thepower of municipalities to terminate workers mustbe shielded from the “whim of arbitrators” and the“routine[] challenge[s]” of employees. In nouncertain terms, the Court concluded that a disputeover a no-layoff agreement should not reach anarbitrator unless the parties have explicitly spelledout the circumstances in which layoffs areproscribed.This decision marks an important shift in howNew York courts treat no-layoff clauses and,perhaps, other collectively bargained provisions thatrestrict the employer’s authority to manage businesscosts. For decades, the Court had reiterated that (i)agreed-upon job security provisions are in theinterest of public policy if explicit, unambiguous,and comprehensive; and (ii) arbitration, withoutjudicial interference, is a favored means forresolving disputes concerning these provisions.2Inruling that “layoff” is an ambiguous term thatrenders a job security clause non-arbitrable, theCourt in Village of Johnson City altered theguideposts for the negotiation of no-layoff languagein CBAs.The lesson for unions is clear: a job-securityprovision will protect employees only to the extentit defines the scope of the agreed-upon protections.How Village of Johnson City Raises the Barfor Enforcement of “No Layoff” ClausesIn May 2008, the Village of Johnson City (the“Village”) and the Johnson City Professional FireFighters (the “Union”) executed a CBA, to remain
  25. 25. s t r o o c k & s t r o o c k & l a v a n l l pin effect through May 2011, stating that:A. The Village shall not lay-off anymember of the bargaining unit duringthe term of this contract.B. The Village shall not be required to‘back fill’ hire additional members tomeet staffing level of expired agreement.The parties agreed that they would resolve alldisputes “involving the interpretation or applicationof any [CBA] provisions” through bindingarbitration.One year after executing the CBA, citingeconomic distress, the Village abolished sixfirefighter positions. The Union filed a grievancewith the Village pursuant to the no-layoff clause.When the Village denied the grievance, the Uniondemanded arbitration.The Village asked the Supreme Court (BroomeCounty) to permanently stay the arbitration,arguing that a restriction on the Village’s right toabolish firefighter positions – the very restriction towhich the parties agreed in the CBA – was void asagainst public policy. In turn, the Union sought toenjoin elimination of the firefighter positionspending the arbitrator’s decision.Relying on well-settled precedent, the SupremeCourt ordered the parties to arbitrate.3In aunanimous decision, the Appellate Division, ThirdDepartment, affirmed. It laid out the traditionaltwo-prong arbitrability test:(i) Is there a public policy, statutory, orconstitutional prohibition againstarbitration of the grievance?; and(ii) If not, did the parties agree toarbitrate?Applying the first prong, the Third Departmentexplained that a “public employer does not violatepublic policy by voluntarily including a reasonablejob security provision in a CBA.”4It found theno-layoff clause to be reasonable because itsduration was brief (three years), the parties enjoyedequal bargaining power, and the CBA was notnegotiated during a financial emergency. Thecourt added that public policy restrictions onarbitration are “rare” and “almost invariably”involve a nondelegable constitutional or statutoryduty, which was not present. The court restatedthe Court of Appeals’ longstanding rule thatarbitration should not be stayed absent a “plain andclear” public policy restriction, statute, orcontrolling case barring arbitration. Applying thesecond prong, the court explained that, in light ofthe “broad” scope of the parties’ arbitration clause,it was limited to determining whether there was areasonable relationship between the subject matterof the dispute and that of the CBA. That test waseasily met.In an opinion decidedly favoring publicemployers, a narrow majority of the Court ofAppeals reversed.5The majority did not evenreach prong two of the arbitrability test, concludingas a threshold matter that the no-layoff clause wasnot explicit, unambiguous and comprehensive and,accordingly, was unenforceable as against publicpolicy. Before a municipality relinquishes its rightto lay off employees “for budgetary, economic orother reasons,” the Court said, the parties must“explicitly agree” that this will occur and the scopeof the agreement must “evidence that intent.”The no-layoff provision failed this test, accordingto the majority, because, although it prohibited“layoffs,” it did not explicitly prohibit eliminationof firefighters out of budgetary necessity. TheCourt, while acknowledging that the no-layoffprovision may, in fact, have encompassed thisprecise prohibition and that the parties hadexpressly agreed to arbitrate all disputes involving“any” CBA provision, determined that because“layoff” is “ambigu[ous],” “narrow and limited,”and “open to different and reasonableinterpretations,” allowing arbitration would25
  26. 26. s t r o o c k & s t r o o c k & l a v a n l l pimproperly subject the Village’s layoff authority to“the whim” of an arbitrator.6In reaching its determination, the Courtexamined two of its prior cases, both decided in1976. In Yonkers School Crossing Guard Union v.City of Yonkers, the Court found that a CBAprovision stating that “[p]resent members may beremoved for cause but will not be removed as aresult of Post elimination” was ambiguous and,thus, nonarbitrable.7By contrast, in Board ofEducation of Yonkers City School District v. YonkersFederation of Teachers, the Court found arbitrable aCBA provision stating that “[d]uring the life of thiscontract no person in this bargaining unit shall beterminated due to budgetary reasons or abolition ofprograms but only for unsatisfactory jobperformance as provided for under the TenureLaw.”8The Court explained that the clause inYonkers Federation of Teachers was “explicit in itsprotection of the [workers] from abolition of theirpositions due to budgetary stringencies.” Becausethe no-layoff clause in Village of Johnson City lackedthe “due to budgetary reasons” languagehighlighted in Yonkers Federation of Teachers, theVillage of Johnson City majority concluded that theformer was unenforceable. The Court did notacknowledge its subsequent opinions pertaining tothis issue.9Village of Johnson City Tips the Scales inFavor of Employers’ RightsMore than three decades ago, the Court ofAppeals declared that a CBA provisionguaranteeing public employees job security for areasonable period of time does not violate publicpolicy.10In fact, that Court extolled the public-policy virtues of such a provision, explaining that it“insures that, at least for the duration of theagreement, the employee need not fear being putout of a job.”11The absence of such fear, said theCourt, “may be critical to the maintenance andefficiency of public employment . . . .”12NewYork courts have long encouraged arbitration oflabor disputes and, accordingly, have tended touphold broad CBA arbitration provisions.13The holding in Village of Johnson City that theCBA clause prohibiting “layoff[s]” is nonarbitrablerelies on two main conclusions that are, at the least,subject to reasonable disagreement. The firstconclusion is that the term “layoff” is, at once, too“narrow and limited” and too “open [and] . . .ambigu[ous]” to explicitly cover job loss due toeconomic distress. The second is that it was therole of the court – not the role of the agreed-uponarbitration mechanism – to determine the scope ofthe CBA’s job security protections.A. The Meaning of “Layoff”The logic of Village of Johnson City regarding themeaning of “layoff” is flawed. Most statutes,regulations, judicial opinions (and dictionaries)express a contrary view to that expressed by thenarrow majority of the Court of Appeals. Thegeneral consensus of these authorities is that“layoff” encompasses job loss resulting from lack ofmoney, lack of work, or other circumstancesunrelated to the employee’s performance orconduct.Adopting this view, one New York courtexplained that “lay-off” is:separation due to conditions prohibitingthe employer from providing work forthe employee. For instance, a medicalcenter may have reduction in thenumber of patients or a budget cut,forcing it to reduce its services . . . Inturn, the employer will have to reduceits work force.14Southern District of New York Judge KevinDuffy similarly found that “layoff,” though notdefined in the collective bargaining agreement atissue in that case, referred to unemployment26
  27. 27. s t r o o c k & s t r o o c k & l a v a n l l p“resulting from a slowdown in the operation of theplant or some such similar occurrence,”15and theSecond Circuit Court of Appeals stated that a layoffoccurs when employees’ “jobs were no longernecessary.”16New York courts addressingunemployment insurance disputes have alsoaddressed the meaning of “layoff.” Those casesconclude that a “layoff,” as distinguished from adischarge or voluntary employment termination,encompasses job loss resulting from a “decrease inthe volume of business,” a “lack of work forlaborers,” or other “economic causes.”17No New York statute or regulation defines“layoff,” but other jurisdictions’ statutes,regulations, and rules reinforce its plain meaning.California’s Labor Code defines layoff as “aseparation from a position for lack of funds or lackof work.”18Florida’s public-employees statutedefines it as “termination of employment due to ashortage of funds or work, or a material change inthe duties or organization of an agency . . . .”19Louisiana’s civil service rules define it as the“separation of an employee from a position becauseof a lack of work or a lack of funds or the abolitionof a position.”20New Hampshire defines it as “thecomplete separation of an employee from the stateclassified service for an indefinite period by reasonof abolition of position, change in organization,lack of work, insufficient funds, or other reasonsoutside the employee’s control . . . .”21Eitherexpressly or by reasonable implication, the legaldefinitions of “layoff” encompass job loss resultfrom economic distress.Other important definitions of “layoff” furthercontradict the Court’s finding that the word is too“narrow and limited” to encompass theabolishment of employee positions. Black’s LawDictionary, for example, broadly defines it as “[t]hetermination of employment at the employer’sinstigation; esp., the termination—either temporaryor permanent—of many employees in a shorttime.”22Roberts’ Dictionary of Industrial Relationsdefines it as “temporary or indefinite separationfrom employment.”23West Virginia defines it as“any involuntary cessation of an employee for areason not relating to the quality of the employee’sperformance or other employee-related reason.”24The majority opinion in Village of Johnson Cityacknowledges that, whether or not explicit in itscoverage of economic-based layoffs, the no-layoffclause unambiguously constituted a “job securityclause.” This is consistent with Burke v. Bowen,where the Court of Appeals found that a “jobsecurity” clause – providing that “in no event shallthe presently agreed upon minimum [number offirefighters] be readjusted downward” – was“explicit” and “violate[d] no public policy,” eventhough it did not explicitly refer to protectionsagainst staff reductions due to fiscal strain.25Thedissenting judges in Village of Johnson City thuspoint out that a “plain reading” of the no-layoffclause shows that the Union “negotiated to ensurethat its constituents need not fear being put out oftheir firefighting jobs during the life of the CBA”and that the parties used “layoff” to “succinctly butthoroughly address the threat of job insecurity.”They further observe that “‘layoff’ pervades thepublic dialogue” and “typically signif[ies] the kindof large scale public and private workforcereductions that have characterized recent economiccrises.” In their view, “a job security clause neednot specifically reference protection againstreductions due to fiscal strain to be enforceable.”But an explicit and unambiguous reference tojob security was not enough for the Village ofJohnson City majority to deem the clause explicitand unambiguous. Instead, the Court highlightedthe parties’ disagreement over whether “layoff”constituted “permanent or nonpermanent jobloss,”26even though the no-layoff provision inYonkers Federation of Teachers – which the Courtupheld as explicit, unambiguous, andcomprehensive – similarly prohibited“terminat[ion]” of employees without specifyingwhether “termination” refers to permanent ortemporary job loss.2727

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