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

STROOCK REPORTS – PUBLIC EMPLOYEE LAW
Co-Editors: Alan M. Klinger, Co-Managing Partner, and Dina Kolker, Special Counsel in Stroock’s Litigation and
Government Relations Practice Groups. The Co-Editors wish to thank Beth A. Norton, Kerry T. Cooperman, Lee
M. 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 Balanced
Approach to Collective Negotiations
Summer 2012
Introduction
Last year saw debilitating losses to public sector
workers. Anti-union bills in both Wisconsin and
Ohio rolled back core collective bargaining rights
amidst fierce public debate.1
More recently,
Wisconsin’s pro-union voters were unable to oust
Governor Scott Walker in a recall election, while
residents of San Diego and San Jose voted to cut
the pension benefits afforded to city workers.2
New York, long a bastion of public sector strength,
proved not immune to anti-union sentiment with
the recent legislative adoption of Tier 6 limits on
pension levels for new hires. Now, labor’s
opponents are targeting the Taylor Law, the statute
enacted to maintain balanced labor relations
throughout the state.
Critics seem particularly intent on repeal, or at
least reform, of the Triborough Amendment. This
provision of the Taylor Law forbids public
employers from unilaterally changing the terms and
conditions of employment during negotiations after
the existing contract has expired, allowing workers
to “benefit” from the terms of the previous
contract until a new one is reached. (As discussed
below, absent from the discourse regarding the
Triborough Amendment has been what unions
agreed to forego in return for this protection.)
Critics also are opposed to a provision of the Taylor
Law that compels police officers, firefighters, and
other uniformed personnel to resolve impasse via
interest arbitration. They not only object to the
provision’s interaction with Triborough, which
ensures that employers cannot compel unions to
enter into arbitration before there is genuine
impasse, but also argue that interest arbitration
should be more favorable to employers.
ALSO IN THIS ISSUE
Protecting Privacy in the Technology Age: The Scope
of GPS Tracking of Public-Sector Employees in the
Wake of U.S. v. Jones………………………..………..9
A Hopeful Outlook On Privacy Rights For Public
Sector Employees……………………………………16
State Court Appellate Division: Health and Hospital
Employees Have No Standing to Sue under Health and
Safety Regulations…………………………………...20
Negotiating “No-Layoff” Clauses In The Aftermath Of
Johnson City Professional Firefighters Local 921 v. Village of
Johnson City…………………………….…………….24

s t r o o c k & s t r o o c k & l a v a n l l p
Accordingly, these critics want the provision to
sunset on July 1, 2013.3
Leading the attacks are the Empire Center for
New York State Policy (the “Empire Center”) and
the Manhattan Institute. Indeed, within the past
few months, the Empire Center has attacked these
protections in the pages of both the New York
Times and Newsday.4
Although the Empire Center
and the Manhattan Institute have long opposed
labor, the concern is that their views seem to be
gaining traction – a Triborough repeal bill was
presented in the New York State Assembly and
Governor Cuomo may be considering a suspension
of the Amendment.5
Any change to the Taylor Law would have
dramatic ramifications for labor relations
throughout New York State. 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.7
With respect to
compulsory interest arbitration, the Taylor Law also
covers corrections officers and certain detective-
and criminal-investigators,8
and affords optional
coverage to unions representing transit employees
throughout New York City.9
Furthermore, police
and fire personnel (and certain other investigators)
in New York City may petition PERB to assert
exclusive jurisdiction over impasse proceedings,
thereby subjecting themselves and their adversaries
to the Taylor Law’s compulsory interest arbitration
provisions.10
Any state-level attack on compulsory
arbitration would equally threaten labor relations
for these workers.11
These critics, however, ignore the delicate
balance at the heart of the Taylor Law: protecting
the public against the disruption of public services
while simultaneously protecting the rights of public
employees.12
They “forget” that the Taylor Law
strips public employees of their essential democratic
right to strike,13
making Triborough and interest
arbitration essential protections during the
bargaining process. They further fail to account for
empirical evidence of how collective negotiations
actually function. Ultimately, their myopic focus
on making bargaining outcomes less expensive
threatens to destabilize labor relations throughout
the state.
A Needed Protection
1. Tilting The Scale
Critics claim the Triborough Amendment chills
collective negotiations. The repeal bill that was
brought before the New York State Assembly
asserts that the Amendment “undermines the
collective bargaining process and discourages those
at the negotiating table from making givebacks or
concessions.”14
Similarly, the Empire Center
brazenly asserts that repeal of the Triborough
Amendment would “restore at least some balance”
to collective bargaining in New York State.15
However, repeal would actually accomplish the
opposite, tilting the scales heavily in management’s
favor and ultimately threatening the unions’ ability
to adhere to the strike prohibition.
To argue that Triborough should be repealed
because it “disincentivizes unions from making
concessions”16
is simply to argue that unions should
make more concessions. Indeed, without
Triborough, employers could put undue pressure on
unions through unilateral changes, ultimately
putting unions’ backs up against the strike
prohibition. A brief history of the Amendment is
instructive.
2

2. Correcting An Imbalance
During the early years of the Taylor Law, public
employers took advantage of the legal prohibition
against public sector strikes. If a bargaining contract
expired during the course of contract negotiations,
many employers would unilaterally modify
employment conditions in order to pressure
unions. Worse, employers often deliberately
prolonged contract negotiations specifically to
employ this tactic.17
Even when employers did not
unilaterally change workplace conditions, long
periods without a contract meant long periods
without raises and benefits, frustrating union
membership and imposing unfair pressure upon
leaders to make extraordinary concessions. The
result was widespread employer abuse and
corresponding labor unrest, with over 100 illegal
strikes within the first five years of the law’s
passage.18
In 1972, PERB addressed this type of unilateral
change with respect to mandatory subjects of
bargaining in Triborough Bridge and Tunnel
Authority.19
In what became known as the
Triborough doctrine, PERB found that “the
statutory prohibition against an employee
organization resorting to self-help by striking
imposes a correlative duty upon a public employer
to refrain from altering terms and conditions of
employment unilaterally during the course of
negotiations.”20
In PERB’s assessment, removing
the right to strike crippled the union’s ability to
negotiate effectively, and employers who made
such unilateral changes did so in bad faith.
Approximately 180 strikes over the next ten
years prompted the New York State Legislature to
take further action. The so-called Triborough
Amendment, passed in 1982, prohibited public
employers from “refus[ing] to continue all the
terms of an expired agreement until a new
agreement is negotiated” unless – importantly – the
union went on strike.21
The Legislature thus
recognized a more equitable workplace balance:
unions that acceded to the goal of maintaining
labor stability in the public sector would be
protected from unilateral changes when their
contracts expired during negotiations. Moreover,
New York City’s Board of Collective Bargaining
soon read the Amendment into its own
jurisprudence.22
The Amendment enacted into law a
fundamental component of PERB’s jurisprudence:
“[t]he sine qua non of negotiating in good faith is
refraining from imposing unilateral changes in
terms and conditions of employment during
negotiations.”23
Indeed, as history shows,
employers have little reason to bargain at all if they
remain able to make unilateral changes during the
bargaining process. Thus, those who claim that
repeal would “restore balance” to labor relations in
New York are, in fact, seeking to destroy a
fundamental piece of the existing balance. It is
Triborough that restored fairness and balance. In its
absence, the system would both deprive employees
of their basic right to strike and subject them to the
employer’s unchecked ability to obtain concessions
to unreasonable demands by strong-arming unions
into “agreement.” Good-faith bargaining would
be rendered meaningless.
3. Stepping On Step Increases
Even if outright repeal is beyond reach, critics
such as the Empire Center alternatively argue that
step increases should be removed from Triborough’s
ambit because they are too costly to maintain
during the negotiation period. The argument fails
on its own terms.
First, step increases accrued during impasse do
not pose a budgetary burden because they are
predictable and, therefore, planned-for by the
employer. They also tend to be modest and
infrequent.
Second, the argument entirely misrepresents the
economics of contract negotiations. Step raises
3

only increase costs during the negotiation if (1)
negotiations are protracted for sustained periods
beyond the contract’s expiration and (2) one
assumes – as the Empire Center does – that a new
agreement will not only fail to provide any raises
but also include substantial salary cuts. Wages and
steps are almost always a part of a collective
agreement and often apply retroactively, so the
“increased costs” accrued during negotiations are
nothing more than the costs the employer would
have faced if the new contract had been agreed
upon immediately.
More broadly, attacks on the “cost” of step
increases are thinly-veiled reiterations of municipal
employers’ ongoing objections to the labor costs
associated with having a unionized workforce, a
complaint PERB has consistently maintained is to
be resolved through negotiation.24
Indeed, the
Empire Center’s fixation on step increases fails to
account for the fact that unions achieve reasonable
cost reductions through reduced benefits and
increased productivity. Moreover, employers often
delay payments of step raises accrued during
contract negotiations, are reluctant to pay back-pay
once a new contract is signed, and refuse to pay
any accrued interest. Back-pay thus effectively
functions as an interest-free loan from union to
employer during the negotiation period, further
incentivizing employers to prolong negotiations.
Finally, even though Triborough helps establish a
sustainable balance, employers still maintain
considerable authority to reduce costs and put
pressure on unions even during a status quo period.
In extreme cases, such as when New York City
teetered on the brink of bankruptcy in the mid-
1970s, and when Buffalo entered a fiscal crisis in
the mid-2000s, municipalities may seek to freeze
public sector wages within the confines of the
federal Contracts Clause.25
The union has no
equivalent power, and removing Triborough would
only tilt the scales further in management’s favor.
4. Finality and Stability
Beyond protecting unions against unilateral
changes during the negotiation process, Triborough
also protects uniformed personnel and others from
employers who seek to force arbitration before
there is genuine impasse. Under Triborough, unions
subject to compulsory interest arbitration must
authorize the initiation of arbitral proceedings. But
the Empire Center charges that this provision
enables police and fire unions to simply “lock in”
all of their contract provisions, leaving employers
without any ability to unilaterally commence
interest arbitration.26
A discussion of the provision at issue informs the
response to this complaint. The Taylor Law
generally provides that PERB may declare impasse
upon petition or consent of the union. Once
impasse is declared, the parties must first attempt to
resolve the dispute via mediation, then via fact-
finding, then via legislative determination.27
During the fact-finding process, the parties may
voluntarily submit to arbitration. The law differs
slightly for police, firefighters, transit workers and
other uniformed forces – the parties must submit to
final, binding arbitration if they cannot resolve the
dispute through mediation.28
It is this alternative
procedure that is due to expire July 1, 2013.
The Triborough Amendment modified this
process. It set forth that an employer may not
change the terms and conditions of employment
“until a new agreement is negotiated,”29
but
ultimately left unclear whether an employer may
change workplace policies as the result of an arbitral
award. In City of Kingston, PERB held in the
negative, seeking to prevent disingenuous
employers from rushing to arbitration before
exhausting good faith bargaining.30
Accordingly,
PERB has read the Triborough Amendment to
require the union’s consent before arbitration
commences.
4

PERB also responded to the critique that its
reading of the Taylor Law deprives employers of
the ability to petition PERB for an impasse
determination: Just as an employer may not
unilaterally depart from the status quo during
contract negotiations, an employer must not be
able to compel the union to accept a new status
quo via a decision rendered by a third party.31
Nevertheless, PERB did allow employee
organizations to waive their rights under
Triborough,32
thus ensuring that disputes are resolved
when there is genuine impasse.
The Empire Center also alleges that compulsory
arbitration allows unions to block arbitration
indefinitely. This fear is simply unfounded because
both parties always retain an obligation to bargain
in good faith. Furthermore, given the employer’s
ability to effect layoffs, unions remain under
pressure to reach agreement. The truth of this is
borne out by the City often being the source of
delay in negotiating new agreements. Eliminating
Triborough would embolden the City’s continued
efforts to forestall the efficient and fair resolution of
differences during the bargaining process.
Ultimately, the Triborough Amendment’s
protections are an effort to perfect the balance
between protecting workers’ rights and maintaining
labor peace. A union that is denied its fundamental
right to strike must have the assurance that the
employer will neither unilaterally change the terms
of conditions of employment, nor rush to impasse
in order to impose new terms and conditions via
the decree of a third party. Similarly, impasse
resolution must allow the parties to come to mutual
agreement when they are able, while also providing
for finality when they remain divided. Critics
ignore these fundamental goals.
An Attack On Impasse Resolution
Detractors also seek repeal and reform of
compulsory interest arbitration itself. The
Manhattan Institute claims that arbitral awards have
unduly increased firefighter salaries across the state,
and advocates that the New York State Legislature
allow the provision to expire on July 1, 2013.33
These positions, like those to repeal Triborough,
misunderstand the purpose of interest arbitration
and misconstrue its effect.
Compulsory interest arbitration has played a
central role in maintaining labor stability over the
past several decades. The Taylor Law was
originally passed without mention of interest
arbitration,34
because the law’s drafters anticipated
that arbitration would undermine collective
negotiations.35
However, 40 illegal strikes within
the first three years of the Taylor Law’s passage36
made it clear that the Committee had
underemphasized the value of an impasse process
that ultimately provided finality for employers,
employees, and the public. The Taylor Law was
amended in 1974 to provide compulsory
arbitration for police and firefighters on a three-
year experimental basis,37
with the goal of ensuring
that services remained uninterrupted in these
sectors. The solution has largely worked,
explaining why the provision has been expanded to
transit workers, corrections officers, and
investigators, and renewed repeatedly through the
present.
Contemporary critics falsely assert that
compulsory interest arbitration encourages unions
to “rush to arbitration.”38
At the outset, this
argument is in direct tension with cries to repeal
Triborough based on the fear that unions will
prevent arbitration indefinitely. Moreover, there is
no evidence that interest arbitration has increased
the number of arbitral awards at the expense of
negotiations.39
To the contrary, a Cornell
University study surveying awards between 1990
and 2000 found that the availability of interest
arbitration “encourages parties to be more realistic
in their negotiations and to settle their impasse
without award.”40
It found that, even though 28%
of firefighter units and 40% of police units went to
5

impasse, an award was issued to resolve only 7% of
firefighter and 9% of police contracts, with the
remaining contracts being resolved voluntarily.41
Statistics also show that among New York City’s
police and firefighter unions, 11 contract
negotiations reached impasse between 2000 and
2010, and only three were resolved by arbitration.42
The rest were resolved by voluntarily means.43
Similarly unsupported by empirical evidence are
claims that compulsory interest arbitration unduly
increases salaries for firefighters and police officers.44
The same Cornell University study found that
compulsory interest arbitration has not “led to an
escalation of wages beyond wage levels negotiated
by police and firefighters in other states without
arbitration.”45
Between 1990 and 2000,
firefighters’ wages in New York State decreased by
0.65%. By contrast, wages increased by 6.57% in
states with arbitration statues, by 8.71% in states
without bargaining statutes, and by 15.72% in states
using non-binding mechanisms of dispute
resolution such as mediation and fact finding.
Police wages in New York State between 1990
and 2000 increased only 6.49%. By comparison,
wages increased by 5.25% in other states with
arbitration statues, by the same amount in states
without any bargaining law, and by 8.82% in states
employing non-binding mechanisms of dispute
resolution.46
Short of outright repeal, critics also propose
several reforms. McMahon argues that the
employer’s “ability to pay” should be the
arbitrators’ primary priority when rendering their
decisions. Although the Taylor Law already
requires arbitrators to account for “the financial
ability of the public employer to pay,”47
McMahon advocates for a “rigorous analysis of
fiscal capacity in local communities.”48
Essentially,
he asks arbitrators to take the employer’s
presentation of its own budgetary constraints at face
value, thus assuming that employers are acting in
good faith. But claims of a fiscal shortfall too often
reflect a mere unwillingness to allocate the
necessary resources. Even Mayor Bloomberg
acknowledges that municipal budgets intentionally
underestimate revenues in anticipation of engaging
in collective negotiations.49
They are inherently
political documents.
Ultimately, calls for repeal and reform of
compulsory interest arbitration ignore history and
empirical evidence. Interest arbitration exists
because it provides needed finality when the parties
cannot satisfactorily resolve a contract dispute.
Proposed “reform measures” would wholly
undermine these aims, and repeal would churn up
labor unrest throughout the state. Similarly, there
is no evidence that arbitration chills negotiations or
excessively benefits unions. Most impasses are
resolved prior to an award being issued by the
arbitrator. And cries to repeal compulsory interest
arbitration based on the fear that unions will rush to
arbitrate are at odds with cries to repeal Triborough
based on the fear that unions will prevent
arbitration indefinitely. The arguments give lie to
each other.
Conclusion
The Triborough Amendment and compulsory
interest arbitration represent attempts by the courts
and legislature to restore balance and stability to a
regime that deprives unions of the basic democratic
right to strike. Still, critics now argue that the
system of collective negotiations should be more
favorable to the employer under the false banner of
“restoring balance.” But rather than improving the
balance, their efforts would selectively undermine
the existing balance in negotiation process,
undercutting a 40-year history of legislative fine-
tuning and judicial contemplation and
contravening empirical facts about the process of
collective negotiation. Critics risk destabilizing
labor relations statewide because their attempts to
6

cheapen the outcomes will ultimately cheapen the
process.
For More Information
Alan M. Klinger
212.806.5818
aklinger@stroock.com
1. Ohio voters thankfully repudiated the anti-union bill in
a 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 Diego
and San Jose Lead Way in Pension Cuts,” N.Y. TIMES at
A1 (June 7, 2011).
3. See N.Y. CIV. SERV. LAW § 209.
4. E.g., Danny Hakim, Even without Contracts, Unions in
State Get Raises, N.Y. TIMES, April 10, 2012, at A18.E.J;
McMahon, “Nassau’s Generous Police Pay Can’t Go
On,” NEWSDAY, Feb. 23, 2012, at A37.
5. See A01329, 2012 Assemb. (proposing a repeal of the
Triborough 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 not
make a unilateral change to any mandatory subject of
bargaining, or to any term and condition of employment
established by the previous contract. NYCCBL §12-
306(a)(5). Even before the provision was codified into
the NYCCBL, the Board of Collective Bargaining
determined that it was compelled by the Taylor Law to
comply with the Triborough Amendment itself. See
LaRivere v. White, 39 OCB 36 (BCB 1987) (Anderson,
Arb.). For a summary of PERB’s Triborough
jurisprudence, see, e.g., Dist. Council 37 v. City of New
York, 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 New
York City Transit Authority, the Metropolitan Transit
Authority, and the Staten Island Rapid Transit
Operating Authority. See id. at § 209(5)(a), (f)
(permitting relevant employee organizations to elect to
be covered by the provision within 60 days of the
provision’s enactment).
10. N.Y. CIV. SERV. LAW § 212(3); see also Patrolmen’s
Benevolent Ass’n., 34 PERB 7040, *2 (2001). Pursuant
to the holding of Patrolmen’s Benevolent Ass’n., the Board
of Collective Bargaining retains jurisdiction to determine
the scope of bargaining outside of the impasse context.
Id. at *5.
11. Moreover, repeal or reform of compulsory arbitration at
the state level could prompt New York City to revisit
the impasse process under the NYCCBL.
12. See State of New York, Governor’s Committee on
Public Employee Relations, Final Report, March 31,
1966, reprinted in, 1 Jerome Lefkowitz, et al., Public Sector
Labor and Employment Law (3d ed. 2001) [hereinafter
Taylor Report].
13. Id. at 70.
14. A01329 2012 Assemb.
15. EMPIRE CENTER FOR NEW YORK STATE POLICY
[EMPIRE CENTER], TRIBOROUGH TROUBLE: HOW AN
OBSCURE STATE LAW GUARANTEES PAY HIKES FOR
GOVERNMENT EMPLOYEES – AND RAISES THE TAX
TOLL ON NEW YORKERS 13 (Jan 11, 2012), available at
http://www.empirecenter.org/Documents/PDF/Tribor
ough%20Final1.pdf. The same sentiment is echoed by
the New York Conference of Mayors (“NYCOM”).
NYCOM, YOU CAN’T CAP WHAT YOU CAN’T
CONTROL: RECOMMENDATIONS OF THE MAYORAL
TASK FORCE ON MANDATE AND PROPERTY RELIEF 11
(December 2010) (arguing that the Triborough
Amendment “discourag[es] unions from offering
concessions or givebacks).
16. EMPIRE CENTER, supra note 15, at 8.
17. RONALD DONOVAN, ADMINISTERING THE TAYLOR
LAW: 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 other
organized activity short of actual strikes, including any
“concerted stoppage of work or slowdown by public
employees.” 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 Amendment
was adopted in 1998.
23. Bd. of Coop. Educ. Servs., 8 PERB 3018 (1975).
24. See supra note 19, at 3065 (responding to the argument
that “‘[a]t the time of economic contraction…the
[Triborough] precedent would operate effectively to
prevent the managers of public agencies from
conforming to changed circumstances and operating
those agencies in a business-like manner.’”)
7

8
25. [1975] N.Y. LAWS 1405 § 10 (McKinney); N.Y. PUB.
AUTH. §3854. A wage freeze may only be enacted as a
last resort, and litigation is pending against the Nassau
Interim Finance Authority and Nassau County for its
failure to adhere to that requirement. Carver v. Nassau
Cnty. 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” as
defined in the Taylor Law. 18 PERB 3073 (1985). See
also Niagara Cnty. Legislature, 16 PERB 3071, *2 (noting
that an “agreement” is defined in the Taylor law as “the
result 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 often
are based on salaries in adjoining jurisdictions, the law
[compulsory arbitration] had a ratcheting-up effect on
police and firefighter pay across the state.”) See also
Nicole Gelinas, “Curbing Union Excess: Small Steps for
NY’s Timid Pols,” NEW YORK POST (Mar. 13, 2011)
(“Optimally, Albany should get rid of binding
arbitration. If nobody can agree, let the [Transport
Workers Union] work without a contract (with no
wage increases). Workers who don’t like it can quit.”)
34. Thomas Kochan, et al., The Long-Haul effects of Interest
Arbitration: The Case of New York State’s Taylor Law, 63
ILR REV. at 6 (2010).
35. See Taylor Report, supra note 12, at 102 (expecting that
compulsory interest arbitration would “be detrimental to
the cause of developing effective collective
negotiations.”) With respect to voluntary interest
arbitration, see id. at 103 (“Voluntary arbitration on an
ad hoc basis is a desirable course… although it also leads
to binding decisions.”)
36. DONOVAN, supra note 17 at 205 tbl. 9.2 (demonstrating
two strikes in 1967, 26 strikes in 1968, and 13 strikes in
1969).
37. Id.
38. NYCOM, supra note 15 at 10 (“Over the years that the
compulsory arbitration law has been in existence, many
bargaining units have sought to rush to arbitration and
avoid substantive negotiations.”)
39. Kochan, supra note 34, at 26 (“There is no evidence
that, on the whole, arbitration has had a chilling effect
on negotiations.”)
40. Kochan, supra note 34, at 12.
41. Id.
42. The Police Benevolent Association, reaching impasse
four times, accounted for all three arbitral awards. The
Uniformed Firefighters Association reached impasse
three times, and the Correction Officers Benevolent
Association Reached impasse four times. Statistics on
file with the authors.
43. Id.
44. E.J. McMahon charges without support that the
arbitrators tend to be overtly pro-union. See McMahon,
supra note 4 (“[t]he arbitration option – invariably
invoked by unions, not management – made it easier for
politicians 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 compared
adjusted 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 for
New York State Policy, Special Report SR4-07 Taylor
Made: 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 to
include “the ability of a public employer to pay all
economic costs to be imposed on it by an arbitration
award without requiring a reduction in…service or an
increase in…taxes.” NYCOM, supra note 15, at 10.
49. While campaigning for Mayor in 2001, then-candidate
Bloomberg explained that “the city always
underestimates revenues because they have to deal with
the unions.” “Sizing up Budget Cuts and Answering
Criticism about Experience,” N.Y. TIMES, Nov. 1 2001.

Protecting Privacy in the Technology Age: The Scope
of GPS Tracking of Public Sector Employees in the
Wake of U.S. v. Jones
Summer 2012
Introduction
Technology has reshaped workplace life. For
the most part, technological advancements have
enhanced productivity and made the workplace
more efficient. But with progress often come
concerns, one being that some technologies offer
new ways of monitoring employees,1
such as the
increasing use by employers of global positioning
system (“GPS”) technology in vehicles, cell
phones, and other equipment, to monitor
employee movements. This scrutiny is distressing
and undesirable to many employees, who have
recently seen alarming intrusions on their privacy.
Indeed, public sector employees face a greater risk
of these “Big Brother” monitoring techniques by
their public sector employers because Fourth
Amendment law – prohibiting unreasonable
searches and seizures, and utilized as a touchstone
in employment cases – considers public sector
employees to have a diminished expectation of
privacy at work.2
The implications of such use of GPS technology
have not eluded the courts – both state and federal
courts have ruled on the constitutionality of GPS
monitoring in various contexts. Most recently, the
United States Supreme Court decided United States
v. Jones,3
which may positively alter the legal
landscape regarding when and how the
government may use technology to monitor
individuals.
Jones involved the appeal of a convicted criminal,
Antoine Jones, who argued that evidence obtained
by the warrantless use of a GPS device placed on
his wife’s personal car violated his Fourth
Amendment rights.4
Although the Court
unanimously affirmed the D.C. Circuit’s decision
to reverse Jones’ conviction, the precise contours of
the Court’s holding are complex.
This article examines the significance of Jones and
the impact it could have on curbing GPS
supervision of public sector employees.5
Privacy in the Workplace
The Fourth Amendment protects “[t]he right of
the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches
and seizures. . . .”6
New York State’s Constitution
provides an analogous protection, while also

granting:
The right of the people to be secure against
unreasonable interception of telephone and
telegraph communications shall not be
violated, and ex parte orders or warrants shall
issue only upon oath or affirmation that there
is reasonable ground to believe that evidence
of crime may be thus obtained, and
identifying the particular means of
communication, and particularly describing
the person or persons whose communications
are to be intercepted and the purpose thereof.7
These constitutional principles recognize that all
citizens are entitled to some degree of privacy.
When it comes to an employee’s privacy in the
workplace, New York law explicitly recognizes
such a right, albeit a limited one, in specific
contexts. For example, New York law forbids
employers from videotaping employees in
restrooms, locker rooms and other areas where
employees change clothing.8
Nevertheless, public employees occupy a unique
position because they typically are recognized as
having a lesser expectation of privacy in the
workplace than private employees.9
This reduced
expectation of privacy may explain public sector
employers’ increased use of GPS technology to
track their employees.
Two methods favored by employers are targeted
GPS searches and blanket GPS searches. An
employer conducts a targeted GPS search when,
based on suspicion that an employee is violating
workplace rules, the employer installs a GPS tracker
to probe for information relating to the potential
violations. In contrast, a blanket GPS search occurs
when employers – without individualized suspicion
– place GPS devices on employer-issued property
to obtain information. Although targeted GPS
searches have garnered more judicial attention,
blanket GPS searches are more worrisome because
the information gathered from constant GPS
monitoring – even the monitoring of employer-
issued equipment – provides a wealth of private
information about an employee. With the
growing use of GPS technology in the workplace,
courts have confronted these privacy issues more
frequently.
GPS Cases Pre-Jones
Prior to the more widespread use of GPS
technology, the Supreme Court dealt with the use
of electronic surveillance devices in United States v.
Knotts.10
In Knotts, the seminal Fourth
Amendment case in this area, government agents
had placed a beeper in a drum of chloroform to
track its movement.11
Agents then monitored a car
carrying the drum using visual surveillance and
signals from the beeper. The Court permitted this
use of beeper surveillance to track the vehicle.12
Justice Rehnquist, writing for the Court, explained
that “a person traveling in an automobile on public
thoroughfares has no reasonable expectation of
privacy.”13
Therefore, anyone who drives on
public roads willingly reveals “whatever stops he
made, and the fact of his final destination when he
exited from public roads onto private property.”14
Although the Supreme Court had not grappled
with the privacy issues surrounding GPS
technology 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 to
monitor a car for approximately two months
violated the New York State Constitution’s
provision dealing with unreasonable searches,
seizures and interceptions.15
In that case, the police
attached a GPS device to defendant Weaver’s
vehicle without first obtaining a warrant. The
police then collected data from the device for 65
days and ultimately used it to tie Weaver to a
burglary for which he was tried and convicted.
In reaching its conclusion, the Weaver court
distinguished Knotts. Chief Judge Lippman noted
10

that the tracking device in Knotts was primitive and
required police officers actively to follow the
vehicle on which the device was attached. By
contrast, the GPS is “vastly different and
exponentially more sophisticated technology that is
easily and cheaply deployed and has virtually
unlimited and remarkably precise tracking
capability.”16
The court appeared troubled by this
invasive technology and recognized that although
GPS monitoring provides certain information
comprehensively, it lacks the interpretive or
contextual element that only a human can provide.
Even though the Weaver court declared the GPS
search illegal under the New York State
Constitution, it refused to address the issue of
whether the search violated the United States
Constitution, because there were no applicable
federal laws or court decisions on topic at the time.
New York courts appear less willing to find
wrongdoing when the government uses GPS
technology to monitor public employees. This is
possibly because cases involving work-related
misconduct of public employees are judged by a
more lenient standard than is applied in criminal
proceedings. New York’s Appellate Division,
Third Department, articulated the more lenient
standard in Cunningham v. New York State
Department of Labor.17
In Cunningham, the court found that the
constitutional rights of Michael Cunningham, a
state employee, were not violated when the New
York Inspector General’s Office (“OIG”) installed
a hidden GPS tracker on Cunningham’s personal
car to determine whether he was skipping work.
The OIG was investigating Cunningham for
suspicion of taking unauthorized absences from
work and falsifying time records. As part of the
investigation, the OIG installed multiple GPS
devices on Cunningham’s car over the span of 30
days. Along with other evidence, the data
extracted from the GPS devices was used to
demonstrate Cunningham’s misconduct, for which
the Commissioner of Labor later terminated him.
Cunningham appealed the administrative decision.
Justice Lahtinen, writing for the court, observed
that because of Weaver, any GPS evidence gathered
in this case would likely have been suppressed in a
criminal trial. However, Justice Lahtinen noted,
the Weaver standard is not controlling when a
public employer is investigating work-related
misconduct. Such cases are “judged by the
standard of reasonableness under all the
circumstances, both as to the inception and scope
of the intrusion.”18
Moreover, this rule requires
“balancing the deterrent effect of exclusion against
its detrimental impact on the process of
determining the truth.”19
Finally, the clarity of the
law at the time the government official acts factors
into this assessment.
Applying this standard, the court found that the
installation of the GPS was reasonable as was the
scope of its use. Two dissenting justices said that
the GPS monitoring was warranted at its inception,
but that collecting data for 30 days was too broad in
scope. The dissent argued that the government’s
interest in Cunningham’s whereabouts extended
only to his business hours, yet the device collected
data every second of every day for over a month,
including during a week-long family vacation.20
Understanding the implications that GPS
technology has on privacy, the dissenting justices
felt that “deterring such intrusive conduct
outweigh[ed] the detrimental impact on the process
of determining the truth.”21
Although the Weaver and Cunningham decisions
point in opposite directions, the Supreme Court’s
recent decision in Jones may serve to unify the two
cases while providing a new argument against
Orwellian GPS tracking by employers.
United States v. Jones
Jones, the owner and operator of a Washington,
D.C. nightclub, was suspected of trafficking in
11

narcotics. The FBI and Metropolitan Police
Department targeted him in a joint investigation.
After gathering information on him using various
investigative techniques, the officers applied for a
warrant authorizing the installation of a GPS device
for a Jeep registered to Jones’ wife. A warrant was
issued that required the GPS tracker to be installed
within ten days in Washington, D.C. The device
was ultimately mounted in Maryland on the
eleventh day. Over the next 28 days, the device
tracked the vehicle’s movements.
Jones was indicted for various drug crimes based
in 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, but
deemed much of it admissible, citing the Knotts
principle that a person traveling in an automobile
on a public road has no reasonable expectation of
privacy in his movements.22
Jones’ initial trial
produced a hung jury on one count of the
indictment. However, he was eventually
convicted and sentenced to life imprisonment.
The Court of Appeals for the D.C. Circuit
reversed his conviction on the grounds that the
GPS data should have been excluded as a Fourth
Amendment violation.
The issue before the Supreme Court was
“whether the attachment of a Global-Positioning-
System (GPS) tracking device to an individual’s
vehicle, and subsequent use of that device to
monitor the vehicle’s movements on public streets,
constitutes a search or seizure within the meaning
of the Fourth Amendment.”23
A majority of the
Court joined Justice Scalia’s narrowly crafted
opinion, which applied a “common-law
trespassory” test.24
Under this test, physical
occupation of private property for the purpose of
obtaining information qualifies as a search.25
Here,
the installation of the GPS and extraction of data
from it fell within the standard. Importantly, the
Court refused to address an alternative argument
that was waived by the Government: even if the
attachment and use of the GPS was a search,
because the officers had probable cause it was
lawful under the Fourth Amendment.
In contrast, Justice Alito, who authored a
concurring opinion joined by the remaining
Justices,26
came to the same conclusion using the
“reasonable expectation of privacy” test espoused in
Katz v. United States.27
Justice Alito argued that the
Katz Court, by holding that a physical trespass was
no longer required for a Fourth Amendment
violation, abandoned the “common-law
trespassory” test entirely.28
Therefore, Justice Alito
considered “whether [Jones’] reasonable
expectations of privacy were violated by the long-
term monitoring of the movements of the vehicle
he drove.”29
Without determining the precise
point at which the GPS monitoring became a
search, Justice Alito contended that four weeks of
constant observation certainly offends a person’s
reasonable expectation of privacy. He chided
Justice Scalia for relying on a common-law privacy
doctrine that could not possibly comprehend
present GPS technology – facetiously suggesting as
a possible 18th
-century analog a case where a
constable hid in a coach to monitor the movements
of the coach’s owner. Justice Alito’s rejoinder was
that “this would have required either a gigantic
coach, a very tiny constable, or both – not to
mention a constable with incredible fortitude and
patience.”30
Nevertheless, the difficulty in determining the
full implications of Jones lies not with the dispute
between Justice Scalia and Justice Alito, but with
Justice Sotomayor’s concurrence. On the one
hand, she joined the majority and agrees with the
“common-law trespassory” theory “that a search
within the meaning of the Fourth Amendment
occurs, at a minimum, ‘[w]here as here, the
Government obtains information by physically
intruding on a constitutionally protected area.’”31
In Justice Sotomayor’s view, reduction of the
Fourth Amendment to the Katz standard alone
12

“erodes that longstanding protection for privacy
expectations inherent in items of property that
people possess or control.”32
On the other hand, Justice Sotomayor appears to
be sympathetic to Justice Alito’s conclusion that
longer-term GPS monitoring will offend
reasonable expectations of privacy in many
instances. However, although her concurrence
notes that the dangers of GPS technology include
“making available at a relatively low cost such a
substantial quantum of intimate information about
any person whom the Government, in its
unfettered discretion, chooses to track,33
it also
notes that the technological advances that have
made nontrespassory surveillance feasible will also
shape (and perhaps lessen) society’s privacy
expectations. Hence, in future cases Justice
Sotomayor may be willing to join the segment of
the Court that sided with Justice Alito, leaving the
current state of the law murky at best. Still, under
the facts of Jones, all of the Justices were loathe, for
various reasons, to sign off on this intrusive,
computerized monitoring technique.
Implications for Public Sector Employees
Although the lines drawn and alliances formed in
Jones are muddled, the opinions provide a hopeful
outlook for public sector employees who wish to
see “Big Brother” dissipate. Recall that in
Cunningham, the Appellate Division, Third
Department, upheld the installation and subsequent
GPS tracking of a public sector employee’s personal
automobile. In concluding that the installation and
use of the GPS was reasonable, one factor the court
examined was the clarity of the law at the time the
GPS was installed. The court remarked that “at the
inception of the use of a GPS on [Cunningham’s]
car . . . the weight of authority pointed in the
direction that use of a GPS was not a Fourth
Amendment violation even in the criminal law
context . . . .”34
After Jones, the result in
Cunningham no longer appears viable. The
“common-law trespassory” test adopted by the
majority in Jones suggests that the Government
engages in a search, and that it should get a warrant,
any time it installs a GPS device on private
property.35
Given the numerous GPS installations
in Cunningham – all Fourth Amendment searches –
it is likely that Cunningham would be decided
differently today.
Even in the absence of a physical trespass, public
sector employees might be able to successfully curb
government monitoring of private property as a
violation of their reasonable expectations of
privacy.36
No member of the Court in Jones
specifically foreclosed the possibility that GPS
tracking in and of itself violates reasonable
expectations of privacy. Moreover, among Justice
Sotomayor and the three Justices who joined
Justice Alito, there may well be a majority that
would rule that long-term GPS investigations, by
their very nature, infringe on an individual’s
reasonable expectations of privacy. Such an
argument may be invoked in future challenges to
blanket GPS searches. The increased use and
prolonged nature of blanket GPS surveillance
appears to fit the mold of the kind of long-term
monitoring technique that infringes on privacy
expectations. Although the Court did not
articulate a bright-line test indicating the precise
point at which GPS surveillance violates
expectations of privacy, there are suggestions in the
decision that shorter-term monitoring would not
disturb such expectations.37
Nevertheless, the
Court also remarked that privacy expectations are
constantly shifting with respect to new
technological devices.38
The Court’s acknowledgement in Jones of the
varying, and evolving, privacy expectations with
respect to new technologies, provides a glimmer of
hope that the Court may come to decide that
public employees have a legitimate privacy interest
in employer-issued property as well as in private
property. Yet, in light of the Court’s current
13

approach to dealing with the scope of the Fourth
Amendment’s privacy protection for government
employees in the workplace, a clear resolution does
not seem likely any time soon.39
Although Jones
leaves many questions unanswered, it can be seen as
an important first step in rebuilding the privacy
protections eroded by the GPS monitoring of
public sector employees. At the very least, where
an employee’s private property is concerned, state
employees now have strong arguments that
employer use of GPS tracking is unreasonable.
Alan M. Klinger
212.806.5818
1. William A. Herbert & Amelia K. Tuminaro, The Impact
of Emerging Technologies in the Workplace: Who’s Watching
the 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) (internal
citations omitted).
3. United States v. Jones, 132 S. Ct. 945 (2012).
4. Id. at 948. Importantly, Jones relates only to the
Government’s use of GPS devices on an employee’s
private property. Id. at 949 (defining a search as “[t]he
Government physically occup[ying] private property for
the purpose of obtaining information”) (emphasis
added).
5. Although there have been no Supreme Court decisions
on GPS technology as it relates to government-issued
property, other Supreme Court precedent indicates that
it is unlikely that public sector employees have a Fourth
Amendment privacy interest in such property. In
O’Connor v. Ortega, the Supreme Court attempted to
elucidate a standard on the scope of Fourth Amendment
protection for government employees in the workplace.
480 U.S. 709 (1987). The Court held that “[i]ndividuals
do not lose Fourth Amendment protections merely
because they work for the government instead of a
private employer,” but a majority was unable to agree
on a framework for Fourth Amendment claims against
state employers. Id. at 717. Instead, a four-Justice
plurality held that a two-step analysis applies. A court
must first consider the “operational realities of the
workplace” to determine whether an employee’s
constitutional rights are involved. Id. Next, if an
employee has a legitimate expectation of privacy,
“public employer intrusions on the constitutionally
protected privacy interests of government employees for
noninvestigatory, work-related purposes, as well as for
investigations of work-related misconduct, should be
judged by the standard of reasonableness under all
circumstances.” Id. at 725-26. Recently, the Supreme
Court employed O’Connor as guidance in City of Ontario
v. Quon, 130 S. Ct. 2619 (2010), where it ruled – on the
specific facts of the case – that a state employee had no
legitimate expectation of privacy in text messages sent
from a government-issued pager. The Court refused to
establish whether a government employee enjoys a
reasonable expectation of privacy when using
government-issued equipment and instead opted to
cabin its opinion at the risk of “elaborating too fully on
the Fourth Amendment implications of emerging
technology before its role in society has become clear.”
Id. at 2629. Thus, without a clear standard, and a case
finding no legitimate expectation of privacy in a
government-issued pager, it appears that the Supreme
Court 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 of
the beeper because he believed he lacked standing to
make such a challenge. Id. at 279 n.1. Although the
Court noted that several Courts of Appeals had
approved warrantless installations, it refused to rule on
that 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, Sotomayor
and Thomas joined Justice Scalia’s opinion.
14

15
25. Jones, 132 S. Ct. at 949.
26. Justices Breyer, Ginsburg and Kagan joined Justice
Alito’s opinion.
27. 389 U.S. 347 (1967). Katz involved the use of an
electronic eavesdropping device on a public phone
booth. Although the device did not physically intrude
on the area occupied by a caller, police officers were
able to record a target’s conversations. The Court held
that the Fourth Amendment protects all areas where a
person has a reasonable expectation of privacy even
where there is no physical trespass. Id. at 358.
28. Acknowledging that later cases beginning with Katz
have deviated from the “common-law trespassory” test
in favor of a “reasonable expectation of privacy”
standard, Justice Scalia cautioned that Katz did not
eliminate the former. Id. at 950. As support for this
position, Justice Scalia references Justice Brennan’s
concurring opinion in Knotts, stating “that, when the
Government does engage in physical intrusion of a
constitutionally protected area in order to obtain
information, that intrusion may constitute a violation of
the 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 GPS
tracking provides. Id. at 955-56 (“GPS monitoring
generates a precise, comprehensive record of a person’s
public movements that reflects a wealth of detail about
her familial, political, professional, religious, and sexual
associations.”) Furthermore, knowledge that the
Government may be watching chills other important
associational 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 this
notion. 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 electronic
surveillance similar to GPS monitoring conducted
without a warrant constituted a violation of the Fourth
Amendment); State v. Adams, No. 4964, 2012 WL
1416414, at *3 (S.C. Apr. 25, 2012) (same). But see,
United States v. Amaya, No. CR 11-405-MWB, 2012
WL 1188456, at *4 (N.D. Iowa Apr. 10, 2012) (“Jones
left open the question of whether a warrant is required
for GPS monitoring or if . . . warrantless GPS
monitoring is lawful when officers have reasonable
suspicion or probable cause to believe that a vehicle is
involved in illegal activity.”)
36. At least one court commented that the five concurring
justices in Jones might use the “reasonable expectation of
privacy” test to find a Fourth Amendment violation
when the government conducts electronic surveillance
on a person’s movements for an extended period of time
without a warrant. In re Application of United States for an
Order Pursuant to Title 18, U.S.C. § 2703(D) to Disclose
Subscriber 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 WL
862707, at *6 (S.D. 2012) (deciding that under the
“reasonable expectation or privacy test,” law
enforcement violated the defendant’s subjective
expectation of privacy in his movements by attaching a
GPS to his vehicle and monitoring his movements for
26 days); Montana State Fund v. Simms, 270 P.3d 64, 71
(“Montanans do not reasonably expect that [the] state
government, in its unfettered discretion and without a
warrant, is recording and aggregating their everyday
activities and public movements in a manner which
enables the State to ascertain and catalog their political
and religious beliefs, their sexual habits, and other private
aspects of identity.”)
37. See Jones, 132 S. Ct. at 964 (Alito, J., concurring)
(“[R]elatively short-term monitoring of a person’s
movements on public streets accords with expectations
of privacy that our society has recognized as
reasonable.”)
38. Id. at 963 (“The availability and use of these and other
new devices will continue to shape the average person’s
expectations about the privacy of his or her daily
movements.”)
39. See supra note 5.

A Hopeful Outlook on Privacy Rights for Public
Sector Employees
Summer 2012
Introduction
The mantra is often repeated that public
employees have a greatly diminished privacy
interest while on the job.1
Recent events brought
renewed focus on the scope of such rights, possibly
evidencing (even in the face of an adverse decision)
a shift in how these rights will be viewed going
forward. First, this article discusses the controversy
sparked by the publication of Teacher Data
Reports (“TDRs”) by the Board of Education of
the City School District of the City of New York
(“BOE”), and the recent willingness of state
representatives and courts to consider the privacy
interest of public employees in policy decisions. It
will also address American Federation of State County
and Municipal Employees (“AFSCME”) Council 79 v.
Scott,2
a recent Florida case where a federal judge
struck down – as a Fourth Amendment violation –
a program that would have required many state
employees to undergo random drug testing.
Teacher Data Reports
Beginning in the 2007-2008 school year, the
BOE launched a pilot program designed to test a
possible teacher performance evaluation tool.
Teachers consented to participate in this program
based on the BOE’s assurance that any information
measuring teacher performance would be kept
confidential. Teachers were then ranked – in
reports known as TDRs – utilizing a complex
formula that factored in student demographics as
well as certain standardized test scores. Although
City officials defended these reports, many others
criticized them as unreliable. Independent experts,
school administrators and teachers all expressed
concerns over the large margins of error and
otherwise flawed methodology of the rankings.
Specifically, the rankings were compiled from a
small sample size and contained factual errors and
omissions, among numerous other problems. For
example, fifth grade teachers in some schools
“departmentalize,” meaning there is one teacher
who teaches only English and Language Arts
(“ELA”) to the entire 5th
grade and another teacher
who teaches all of the math classes. Some teachers
received two scores - one for ELA and one for
math - even though each teacher only taught one
of these subjects.
In 2010, pursuant to New York’s Freedom of
Information Law (“FOIL”), various news
organizations requested the release of these TDRs.
After the BOE approved their requests, the United
Federation of Teachers (“UFT”) objected. The

UFT sued the BOE in state court to enjoin the
dissemination of TDRs, unless the BOE redacted
the reports and removed any teachers’ names. The
BOE had redacted teacher names in response to
prior FOIL requests. The UFT argued, among
other things, that releasing the teachers’ names was
an unwarranted invasion of their personal privacy.
However, the court rejected this argument and
determined the BOE could reasonably have
concluded that releasing the teachers’ names was
not an intrusion on the teachers’ personal privacy.3
The UFT appealed.
Although the appellate court found that the trial
court incorrectly reviewed the BOE’s decision to
release the reports, it nonetheless held that the
TDRs should be disclosed under FOIL.4
The
court stated that TDRs do not fall within either of
FOIL’s statutory exemptions for intra-agency
materials or personal privacy.5
While the court
acknowledged that releasing the teachers’ names
would implicate privacy interests, it found on
balance, the public interest in disclosure of
unredacted information outweighed the privacy
interests at stake.6
The conflict has continued since the TDRs’
release. Proponents, including Mayor Michael
Bloomberg, continue to believe that TDRs,
though now abandoned, contain valuable
information that the public has a right to see. On
the other hand, despite warnings by the BOE
against using these rankings to draw specific
conclusions about individual teachers, teachers are
still worried – and with good cause. Since the
release of the TDRs, teachers in New York City
have become subject to unfair attacks with
segments of the media maligning educators based
upon an uninformed view of rankings that are
based on reports that are fundamentally flawed.7
Within 24 hours of the posting of the TDRs,
reporters singled out a Queens English-as-a-Second
Language teacher, rushed to her parents’ home to
locate her, eventually found her home in a “private
housing development,” and harassed her for
comment.8
She declined to speak with reporters,
and even had to call the police twice to have the
reporters removed.9
The harassment continued
following this event, when an article described the
teacher as “the city’s worst teacher.” This example
illustrates why many believe the public shaming of
teachers after the release of the TDRs demonstrates
why the release went too far and was ill-advised.
Even Bill Gates, hardly a defender of public
servants, decried the release of TDRs as a
“capricious exercise in public shaming.”10
Faced with this polarized situation, Governor
Andrew Cuomo brought the issue to the State
legislature. Recognizing that evaluations for some
city employees – such as firefighters and police
officers – are already shielded though the majority
are not,11
Governor Cuomo recognized the need
for a better balance between the teacher’s right to
privacy, the parents’ right to know, and the public’s
awareness. Governor Cuomo produced a
legislative compromise rejecting Mayor
Bloomberg’s position that there should be full
disclosure of teacher evaluations.12
The law reflects
the recognition that it would become more
difficult to attract teachers to the profession – a
necessary and important one – if they risk being
subject to potential persecution. It requires public
disclosure of the final annual rating of teachers and
principals.13
Personally identifying information for
any teacher or principal may not be disclosed,
except to parents and legal guardians under limited
circumstances.14
Parents and legal guardians may
only request a review of the ratings and scores for
the teachers and principal of the school to which
the student is assigned for the current school year.15
A recent Court of Appeals decision, Harbatkin v.
N.Y.C. Dep’t of Records & Info. Servs.,16
reinforces
the propriety of the approach taken by policy
makers. Harbatkin involved a historian’s FOIL
request for unredacted transcripts of interviews
conducted during the middle of the twentieth
century with informants who provided the BOE
with information about teachers it suspected were
17

current or former members of the Communist
Party.17
The City, which promised certain
informants that their reports would be kept
confidential, was apprehensive that providing the
materials would invade the privacy of the people
identified in them. The First Department agreed
and recognized the importance of such promises.
Although the Court of Appeals appreciated the
impediment that working with redacted transcripts
would cause, it nonetheless concurred with the
First Department and concluded that the City’s
promise of confidentiality outweighed this
hardship: “We find it unacceptable for the
government to break that promise, even after all
these years.”18
Thus, the Court highlighted the
significance of promises of confidentiality by
ordering disclosure of the reports, but permitting
the City to redact details pertaining to informants
who were guaranteed confidentiality.19
The promising tone set by New York
policymakers and now the Court of Appeals –
recognizing the potentially harmful side of such
disclosures – continued with the recent decision by
a federal judge in Florida that struck down a state
program that would have mandated random drug
testing for state employees.
AFSCME Council 79 v. Scott
In 2011, Florida’s Governor, Rick Scott, issued
an Executive Order (“EO”) demanding quarterly
drug testing of approximately 85,000 state
government workers, as well as all prospective new
hires. AFSCME, which represents 40,000
employees that would be covered by the EO,
maintained that this policy is unconstitutional. As a
result, AFSCME sued, alleging that the EO
violated the Fourth Amendment’s prohibition of
unreasonable searches.
In April, U.S. District Court Judge Ursula
Ungaro ruled that Governor Scott’s EO violated
the Fourth Amendment’s bar on unreasonable
searches and permanently enjoined the state from
implementing the order.20
Guided by prior
Supreme Court cases that considered the
constitutionality of drug testing,21
Judge Ungaro
reiterated that absent a special need or some
extraordinary public interest, random, suspicionless
drug testing constituted an unreasonable search.22
“The fundamental flaw of the EO,” according to
the court, was “that it infringe[d] privacy interests
in pursuit of a public interest which . . . [was]
insubstantial and largely speculative.”23
Governor
Scott asserted that the EO aimed to save taxpayer
money and promote office productivity.24
Yet,
without documented instances of a drug problem
among state employees, mere conjecture that a
problem existed was insufficient to outweigh the
employees’ privacy interests.25
Any evidence that
was presented failed to convince the court that state
employees had a diminished privacy interest in this
case.26
Accordingly, this decision suggests that the
privacy rights of public employees will not be
casually overlooked in the future.
Looking Ahead
The UFT’s zealous response to, and critique of,
the BOE’s decision to release unredacted TDRs
has been vindicated by the recent steps taken by
state policymakers and the courts, which hopefully
signal a more humane and nuanced approach to
protecting the privacy rights of public employees.
The AFSCME decision also offers the possibility
that these rights will be regarded more favorably
around the country than they have been in the
past. Taken together, these two events provide
hope for public employees that the pendulum of
privacy is swinging back to a more rational place,
providing greater protection for their privacy rights.
18

19
Alan M. Klinger
212.806.5818
1. Caruso v. Ward, 72 N.Y.2d 432, 439 (1988) (internal
citations 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 City
of N.Y., 31 Misc.3d 296 (N.Y. Sup. Ct. 2011).
4. Mulgrew v. Bd. of Educ. of the City School Dist. of the City
of 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, “Teacher
Quality Widely Diffused, Ratings Indicate,”
N.Y. TIMES, Feb. 24, 2012,
http://www.nytimes.com/2012/02/25/education/teach
er-quality-widely-diffused-nyc-ratings-indicate.html.
8. Louis Freedberg, Publishing Teacher
Effective 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 mandates
that all personnel records used to evaluate the
performance of firefighters, police officers and
corrections officials “shall be considered confidential and
not subject to inspection or review without the express
written consent [of the individual] . . . except as may be
mandated by lawful court order.” N.Y. Civ. Rights
Law § 50-a (McKinney 2012).
12. N.Y. Senate Bill No. 7792, Two Hundred Thirty-Fifth
Legislative 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 WL
1449644, at *3 (S.D. Fl. Apr. 26, 2012). The court did
not reach the issue of whether prospective employees
can be subjected to drug testing pursuant to the EO. Id.
at *37.
21. The cases are Skinner v. Ry. Labor Executives’ Ass’n, 489
U.S. 602 (1989), Nat’l Treasury Emps. Union v. Von
Raab, 489 U.S. 656 (1989), Vernonia Sch. Dist. 47j v.
Acton, 515 U.S. 646 (1995), and Chandler v. Miller, 520
U.S. 305 (1997).
22. Id. at *16. Mandatory drug testing for safety-sensitive
jobs is constitutional. See e.g., Skinner, 489 at 628 (1989)
(holding that drug testing of railroad employees was
justified because of the potential hazards involved in
railroad operations), Nat’l Treasury, 489 at 668-69 (1989)
(permitting drug testing of U.S. Customs officials
because they are directly involved with drug
interdiction). Governor Scott’s EO applied to both
safety 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 danger
that must be addressed by suspicionless drug-testing of
state employees, and the Governor shows no evidence
of a drug use problem at the covered agencies.”)
26. Id. at *29.

M. Leviter, and Jason S. Vinokur, associates in Stroock’s Litigation and Government Relations Practice Groups,
State Court Appellate Division: Health and Hospital
Employees Have No Standing to Sue under Health and
Safety Regulations
Summer 2012
Introduction
The Appellate Division, First Department has
ruled that public employees may be deprived of the
opportunity to file a lawsuit in the courts to protect
either their own health, safety and welfare.1
In that
case, Roberts v. Health and Hospitals Corp, 87 A.D.3d
311 (1st Dept., 2011), three groups of petitioners
(elected officials, labor union representatives and
union members) asserted that the decision of the
Health and Hospitals Corp. (“HHC”) to abolish
several trade positions (including electricians,
carpenters and laborers) would create unsafe
conditions for patients and staff members who
remain employed at the affected facilities and
thereby violates HHC’s statutory obligation to
maintain its facilities in a safe condition.
The First Department held that petitioners
lacked standing to challenge the purported
violations. More troubling is that in reaching this
conclusion, the Court found that because the
Legislature gave HHC discretion to determine
non-managerial staffing levels, “HHC’s decisions
regarding staffing levels are beyond judicial
review.”2
Such a broad statement threatens to
immunize government action from judicial review,
essentially preventing employees from challenging
the determinations of administrative agencies,
public bodies or officers, as currently permitted by
Article 78 of the CPLR.
This article analyzes problems caused by the
Roberts decision and suggests ways to limit its
impact.
Standing
Standing – whether the party asserting a claim
has the right to do so – is a threshold matter that
typically is considered at the outset of any litigation.
If a litigant has standing, they have access to the
courts to adjudicate the merits of their dispute.
Without standing, they do not.
New York courts have established a two-part
test to determine whether a party has standing to
challenge a governmental action. First, the
petitioner must demonstrate “injury in fact,”
meaning that he or she “will actually be harmed by
the challenged administrative action.”3
Such injury
must be personal to the party challenging the
action. It must be “distinct from that of the general
public.”4
Second, the injury must fall within the
“zone of interests” promoted or protected by the

statutory provision under which the agency has
acted.5
The “zone of interests” analysis limits the
persons who may challenge an administrative
action to those whose concerns the Legislature
sought to advance or protect.6
This second prong
of the standing test is designed to ensure “that
groups whose interests are only marginally related
to, or even inconsistent with, the purposes of the
statute cannot use the courts to further their own
purposes at the expense of the statutory purposes.”7
In Roberts, respondent HHC specifically
challenged the standing of union petitioners. The
First Department found that petitioners failed to
satisfy either prong of the standing test. With
regard to “injury in fact,” the Court found that
petitioners’ claims of “imminent” risk from
“smoke, fire, bacterial, toxic and structural
hazards,” was too speculative to constitute actual
injury. Petitioners’ claims, the Court said, asserted
only threatened violations of the Public Health
Law; they did not reflect actual violations.
Moreover, the asserted injury to employees who
remained in the affected facilities was not distinct
from that of the public at large who utilize the
HHC facilities.
As for the “zone of interest,” the First
Department determined that employees were not
the target audience, by applying a constricted
reading of the regulations cited by petitioners. The
Court stated that “[a]ny benefits the HHC staff
derives from those regulations are incidental.” The
Court pointed to regulations requiring that
hospitals “be operated and maintained to ensure the
safety of patients” (10 NYCRR 405.24), and
regulations requiring that the ventilation systems
“provide for patient or resident health and
comfort” (10 NYCRR 702.1(d)(1)). The First
Department contended the HHC employees were
not protected by those regulatory provisions
because they do not specifically mention the HHC
employees. In reaching this conclusion, the First
Department dismissed the relevance of other safety
and maintenance regulations that do not mention
patients or staff, by concluding that such regulations
were not promulgated for the benefit of the staff.
The First Department’s reasoning, particularly as
it concerns the “zone of interest,” stands in stark
contrast to some of its own recent decisions also in
the public employment context. In Mulgrew v.
Board of Education, 75 AD3d 412 (1st Dept. 2010),
the First Department found that the United
Federation of Teachers (“UFT”) had standing to
challenge government action, specifically the
closing of schools, under the Education Law, not
only because certain of its members (chapter
leaders) were mentioned in the law in question, but
also because
…those UFT members who are
employed at the schools proposed to
be phased out have an interest in the
matter that would give them standing
to sue. Further, the interests involved
– school closure and the integrity of
the school closure process – are
germane to the UFT’s organizational
purpose, thereby making the union an
appropriate representative of those
interests.8
Just as the Education Law is primarily aimed at
educating students, so are the HHC statute and
related health and safety provisions primarily aimed
at ensuring the safety of patients. As demonstrated
in Mulgrew, however, the “zone of interest”
concept can and should be broader than the
primary beneficiary of the law. It remains to be
seen whether the First Department’s narrow
interpretation in Roberts signals a change in the
Court’s interpretation of standing precedent or
whether it is an anomaly, specific to the facts in
Roberts, particularly as the Court of Appeals has
declined to resolve the apparent inconsistency at
this point in time.
21

Justiciability
Although the First Department could have
ended its analysis of the case with standing, it chose
to opine in dicta on whether HHC’s staffing
decisions presented a justiciable controversy – that
is, is this a matter appropriate for the courts to
decide? After engaging in a lengthy discussion of
the separation of powers, the First Department
concluded that HHC’s decisions regarding staffing
levels are beyond judicial review because there
exists no statute or regulation that requires HHC to
employ a specific level of maintenance staff. The
Court held that “neither the petitioners nor the
courts should be permitted to substitute their
judgment for the discretionary management of
public business by public officials.”9
The decision in Roberts marks a departure from
well-established New York law on the issue of
justiciabililty. As the First Department noted in
Freidus v. Guggenheimer, 57 AD2d 760, 761 (1st
Dept. 1977) (citing Mandel v. Bd. of Regents, 250
NY 173, 176 (1928)), “[d]iscretionary power is not
absolute; it is subject to the limitation that it cannot
be exercised arbitrarily.”
Indeed, one of the stated statutory purposes of
Article 78 of the CPLR is to determine whether
the discretionary actions of government are
arbitrary and capricious. CPLR 7803(3). The
Legislature has struck the balance between the
executive and judicial branches by providing for
deferential but substantial judicial review of
discretionary acts. Not only are such questions thus
justiciable, but the appropriate standard of review is
black letter law; a court will not disturb
discretionary acts of government unless they are
arbitrary, capricious or an abuse of discretion. Pell
v. Bd. of Educ., 34 NY2d 222, 232 (1974). This
affords those adversely impacted by governmental
acts the opportunity to seek relief in a court of law.
Looking Ahead
It is unclear how courts will interpret Roberts and
whether it will be allowed to overturn decades of
established precedent. The admonition by the First
Department that the court should not substitute its
judgment for that of the agency is not a reason to
abstain from review of discretionary acts. Rather, it
should serve to caution future courts as to the
proper application of Article 78 review. This is
particularly true where the issue is one of health
and safety. The Taylor Law itself recognizes that
such issues require a balance and that management
prerogative must bend to negotiation when
management’s discretionary acts translate into
health 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 take
back up to the First Department or the Court of
Appeals so as to clarify that it is permissible for
courts to review the discretionary acts of
government.
Alan M. Klinger
212.806.5818
1. Petitioners sought leave from the Court of Appeals for
permission 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, 2
NY3d 207, 211 (2004).
4. Matter of Transactive Corp. v. New York State Dept. of
Social Servs., 92 NY2d 579, 587 (1998).
5. Novello, 2 NY3d at 211. Unions are often
unincorporated associations. As such, standing is found
where there is a harmful effect on at least one member
and the “zone of interests” must be germane to its
purpose.
22

23
6. Soc’y of Plastics Indust., Inc. v. Cty. Of Suffolk, 77 NY2d
761, 773-74 (1991).
7. Id. at 774.
8. Id. at 413.
9. Roberts, 87 A.D.3d at 323.

Negotiating “No-Layoff” Clauses in the Aftermath of
Johnson City Professional Firefighters Local 921 v.
Village of Johnson City
Summer 2012
Introduction
The New York Court of Appeals recently
handed down a decision that should cause both
public and private sector unions to take a hard look
at their collective bargaining agreements. Divided
4-3, the Court in Johnson City Professional Firefighters
Local 921 v. Village of Johnson City ruled that a
clause stating that “[t]he Village shall not lay-off any
member of the bargaining unit during the term of
this contract” was not arbitrable because it did not
explicitly prohibit the Village from laying off
firefighters due to budgetary strain.1
In a departure
from its past decisions concerning the arbitrability
of labor disputes, the Court declared that the
power of municipalities to terminate workers must
be shielded from the “whim of arbitrators” and the
“routine[] challenge[s]” of employees. In no
uncertain terms, the Court concluded that a dispute
over a no-layoff agreement should not reach an
arbitrator unless the parties have explicitly spelled
out the circumstances in which layoffs are
proscribed.
This decision marks an important shift in how
New York courts treat no-layoff clauses and,
perhaps, other collectively bargained provisions that
restrict the employer’s authority to manage business
costs. For decades, the Court had reiterated that (i)
agreed-upon job security provisions are in the
interest of public policy if explicit, unambiguous,
and comprehensive; and (ii) arbitration, without
judicial interference, is a favored means for
resolving disputes concerning these provisions.2
In
ruling that “layoff” is an ambiguous term that
renders a job security clause non-arbitrable, the
Court in Village of Johnson City altered the
guideposts for the negotiation of no-layoff language
in CBAs.
The lesson for unions is clear: a job-security
provision will protect employees only to the extent
it defines the scope of the agreed-upon protections.
How Village of Johnson City Raises the Bar
for Enforcement of “No Layoff” Clauses
In May 2008, the Village of Johnson City (the
“Village”) and the Johnson City Professional Fire
Fighters (the “Union”) executed a CBA, to remain

in effect through May 2011, stating that:
A. The Village shall not lay-off any
member of the bargaining unit during
the term of this contract.
B. The Village shall not be required to
‘back fill’ hire additional members to
meet staffing level of expired agreement.
The parties agreed that they would resolve all
disputes “involving the interpretation or application
of any [CBA] provisions” through binding
arbitration.
One year after executing the CBA, citing
economic distress, the Village abolished six
firefighter positions. The Union filed a grievance
with the Village pursuant to the no-layoff clause.
When the Village denied the grievance, the Union
demanded arbitration.
The Village asked the Supreme Court (Broome
County) to permanently stay the arbitration,
arguing that a restriction on the Village’s right to
abolish firefighter positions – the very restriction to
which the parties agreed in the CBA – was void as
against public policy. In turn, the Union sought to
enjoin elimination of the firefighter positions
pending the arbitrator’s decision.
Relying on well-settled precedent, the Supreme
Court ordered the parties to arbitrate.3
In a
unanimous decision, the Appellate Division, Third
Department, affirmed. It laid out the traditional
two-prong arbitrability test:
(i) Is there a public policy, statutory, or
constitutional prohibition against
arbitration of the grievance?; and
(ii) If not, did the parties agree to
arbitrate?
Applying the first prong, the Third Department
explained that a “public employer does not violate
public policy by voluntarily including a reasonable
job security provision in a CBA.”4
It found the
no-layoff clause to be reasonable because its
duration was brief (three years), the parties enjoyed
equal bargaining power, and the CBA was not
negotiated during a financial emergency. The
court added that public policy restrictions on
arbitration are “rare” and “almost invariably”
involve a nondelegable constitutional or statutory
duty, which was not present. The court restated
the Court of Appeals’ longstanding rule that
arbitration should not be stayed absent a “plain and
clear” public policy restriction, statute, or
controlling case barring arbitration. Applying the
second prong, the court explained that, in light of
the “broad” scope of the parties’ arbitration clause,
it was limited to determining whether there was a
reasonable relationship between the subject matter
of the dispute and that of the CBA. That test was
easily met.
In an opinion decidedly favoring public
employers, a narrow majority of the Court of
Appeals reversed.5
The majority did not even
reach prong two of the arbitrability test, concluding
as a threshold matter that the no-layoff clause was
not explicit, unambiguous and comprehensive and,
accordingly, was unenforceable as against public
policy. Before a municipality relinquishes its right
to lay off employees “for budgetary, economic or
other reasons,” the Court said, the parties must
“explicitly agree” that this will occur and the scope
of the agreement must “evidence that intent.”
The no-layoff provision failed this test, according
to the majority, because, although it prohibited
“layoffs,” it did not explicitly prohibit elimination
of firefighters out of budgetary necessity. The
Court, while acknowledging that the no-layoff
provision may, in fact, have encompassed this
precise prohibition and that the parties had
expressly agreed to arbitrate all disputes involving
“any” CBA provision, determined that because
“layoff” is “ambigu[ous],” “narrow and limited,”
and “open to different and reasonable
interpretations,” allowing arbitration would
25

improperly subject the Village’s layoff authority to
“the whim” of an arbitrator.6
In reaching its determination, the Court
examined two of its prior cases, both decided in
1976. In Yonkers School Crossing Guard Union v.
City of Yonkers, the Court found that a CBA
provision stating that “[p]resent members may be
removed for cause but will not be removed as a
result of Post elimination” was ambiguous and,
thus, nonarbitrable.7
By contrast, in Board of
Education of Yonkers City School District v. Yonkers
Federation of Teachers, the Court found arbitrable a
CBA provision stating that “[d]uring the life of this
contract no person in this bargaining unit shall be
terminated due to budgetary reasons or abolition of
programs but only for unsatisfactory job
performance as provided for under the Tenure
Law.”8
The Court explained that the clause in
Yonkers Federation of Teachers was “explicit in its
protection of the [workers] from abolition of their
positions due to budgetary stringencies.” Because
the no-layoff clause in Village of Johnson City lacked
the “due to budgetary reasons” language
highlighted in Yonkers Federation of Teachers, the
Village of Johnson City majority concluded that the
former was unenforceable. The Court did not
acknowledge its subsequent opinions pertaining to
this issue.9
Village of Johnson City Tips the Scales in
Favor of Employers’ Rights
More than three decades ago, the Court of
Appeals declared that a CBA provision
guaranteeing public employees job security for a
reasonable period of time does not violate public
policy.10
In fact, that Court extolled the public-
policy virtues of such a provision, explaining that it
“insures that, at least for the duration of the
agreement, the employee need not fear being put
out of a job.”11
The absence of such fear, said the
Court, “may be critical to the maintenance and
efficiency of public employment . . . .”12
New
York courts have long encouraged arbitration of
labor disputes and, accordingly, have tended to
uphold broad CBA arbitration provisions.13
The holding in Village of Johnson City that the
CBA clause prohibiting “layoff[s]” is nonarbitrable
relies on two main conclusions that are, at the least,
subject to reasonable disagreement. The first
conclusion is that the term “layoff” is, at once, too
“narrow and limited” and too “open [and] . . .
ambigu[ous]” to explicitly cover job loss due to
economic distress. The second is that it was the
role of the court – not the role of the agreed-upon
arbitration mechanism – to determine the scope of
the CBA’s job security protections.
A. The Meaning of “Layoff”
The logic of Village of Johnson City regarding the
meaning of “layoff” is flawed. Most statutes,
regulations, judicial opinions (and dictionaries)
express a contrary view to that expressed by the
narrow majority of the Court of Appeals. The
general consensus of these authorities is that
“layoff” encompasses job loss resulting from lack of
money, lack of work, or other circumstances
unrelated to the employee’s performance or
conduct.
Adopting this view, one New York court
explained that “lay-off” is:
separation due to conditions prohibiting
the employer from providing work for
the employee. For instance, a medical
center may have reduction in the
number of patients or a budget cut,
forcing it to reduce its services . . . In
turn, the employer will have to reduce
its work force.14
Southern District of New York Judge Kevin
Duffy similarly found that “layoff,” though not
defined in the collective bargaining agreement at
issue in that case, referred to unemployment
26

“resulting from a slowdown in the operation of the
plant or some such similar occurrence,”15
and the
Second Circuit Court of Appeals stated that a layoff
occurs when employees’ “jobs were no longer
necessary.”16
New York courts addressing
unemployment insurance disputes have also
addressed the meaning of “layoff.” Those cases
conclude that a “layoff,” as distinguished from a
discharge or voluntary employment termination,
encompasses job loss resulting from a “decrease in
the volume of business,” a “lack of work for
laborers,” or other “economic causes.”17
No 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 “a
separation from a position for lack of funds or lack
of work.”18
Florida’s public-employees statute
defines it as “termination of employment due to a
shortage of funds or work, or a material change in
the duties or organization of an agency . . . .”19
Louisiana’s civil service rules define it as the
“separation of an employee from a position because
of a lack of work or a lack of funds or the abolition
of a position.”20
New Hampshire defines it as “the
complete separation of an employee from the state
classified service for an indefinite period by reason
of abolition of position, change in organization,
lack of work, insufficient funds, or other reasons
outside the employee’s control . . . .”21
Either
expressly or by reasonable implication, the legal
definitions of “layoff” encompass job loss result
from economic distress.
Other important definitions of “layoff” further
contradict the Court’s finding that the word is too
“narrow and limited” to encompass the
abolishment of employee positions. Black’s Law
Dictionary, for example, broadly defines it as “[t]he
termination of employment at the employer’s
instigation; esp., the termination—either temporary
or permanent—of many employees in a short
time.”22
Roberts’ Dictionary of Industrial Relations
defines it as “temporary or indefinite separation
from employment.”23
West Virginia defines it as
“any involuntary cessation of an employee for a
reason not relating to the quality of the employee’s
performance or other employee-related reason.”24
The majority opinion in Village of Johnson City
acknowledges that, whether or not explicit in its
coverage of economic-based layoffs, the no-layoff
clause unambiguously constituted a “job security
clause.” This is consistent with Burke v. Bowen,
where the Court of Appeals found that a “job
security” clause – providing that “in no event shall
the presently agreed upon minimum [number of
firefighters] be readjusted downward” – was
“explicit” and “violate[d] no public policy,” even
though it did not explicitly refer to protections
against staff reductions due to fiscal strain.25
The
dissenting judges in Village of Johnson City thus
point out that a “plain reading” of the no-layoff
clause shows that the Union “negotiated to ensure
that its constituents need not fear being put out of
their firefighting jobs during the life of the CBA”
and that the parties used “layoff” to “succinctly but
thoroughly address the threat of job insecurity.”
They further observe that “‘layoff’ pervades the
public dialogue” and “typically signif[ies] the kind
of large scale public and private workforce
reductions that have characterized recent economic
crises.” In their view, “a job security clause need
not specifically reference protection against
reductions due to fiscal strain to be enforceable.”
But an explicit and unambiguous reference to
job security was not enough for the Village of
Johnson City majority to deem the clause explicit
and unambiguous. Instead, the Court highlighted
the parties’ disagreement over whether “layoff”
constituted “permanent or nonpermanent job
loss,”26
even though the no-layoff provision in
Yonkers Federation of Teachers – which the Court
upheld as explicit, unambiguous, and
comprehensive – similarly prohibited
“terminat[ion]” of employees without specifying
whether “termination” refers to permanent or
temporary job loss.27
27

Like “layoff,” “termination” can refer to
“either” type of job loss.28
Moreover, whether the
firefighter layoffs in Village of Johnson City were
permanent was not the subject of the Union’s
grievance or the subsequent litigation. Thus, there
is good reason to criticize the Court’s conclusion
that the job security clause at issue in Village of
Johnson City is ambiguous and limited.
B. The Preference for Arbitration
The Village of Johnson City majority raises a
second important question: Even if the term
“layoff” is unspecific as to what it covers, should
the parties’ dispute have been blocked from
arbitration? Both the Taylor Law and New York’s
Civil Practice Law and Rules authorize public
sector parties, including those in Village of Johnson
City, to arbitrate labor disputes arising from their
CBA.29
These laws reflect the Legislature’s policy
of encouraging arbitration “as a means of
promoting harmonious relations between
governmental employers and their employees, and
preventing labor strife endangering uninterrupted
governmental operations.”30
The Court of Appeals
has thus expressed a general “policy of
noninterference” in labor arbitration, explaining:
Our courts . . . favor . . . a policy
supporting arbitration and discouraging
judicial interference with either the
process or its outcome . . . . Under our
modern arbitration jurisprudence,
judicial intervention on public policy
grounds constitutes a narrow exception
to the otherwise broad power of parties
to agree to arbitrate all of the disputes
arising out of their juridical relationships,
and the correlative, expansive power of
arbitrators to fashion fair determinations
of the parties’ rights and remedies.31
Section 7501 of New York’s CPLR further
provides that courts shall not “consider whether the
claim with respect to which arbitration is sought is
tenable, or otherwise pass upon the merits of the
dispute.” “The merits are for the arbitrator to
decide.”32
Thus, unless there is a “substantial
question” about whether the parties reached a valid
agreement to arbitrate, or the claim sought to be
arbitrated is barred by a statute of limitations, “the
court shall direct the parties to arbitrate.”33
The United States Supreme Court has similarly
recognized the strong public policy in favor of
labor arbitration and judicial restraint, stating that
arbitration is “part and parcel of the collective
bargaining process itself.”34
An order to arbitrate the particular
grievance should not be denied unless it
may be said with positive assurance that
the arbitration clause is not susceptible of
an interpretation that covers the asserted
dispute. Doubts should be resolved in
favor of coverage. . . . In the absence of
any express provision excluding a
particular grievance from arbitration, we
think only the most forceful evidence of
a purpose to exclude the claim from
arbitration can prevail, particularly
where . . . the exclusion arbitration
clause [is] quite broad. Since any
attempt by a court to infer such purpose
necessarily comprehends the merits, the
court should view with suspicion an
attempt to persuade it to become
entangled in the construction of the
substantive provisions of a labor
agreement . . . when the alternative is to
utilize the services of an arbitrator.35
As Justice Douglas observed, arbitrators are
specially positioned to resolve labor disputes
because they are mutually selected by the employer
and the union due to their expertise and insight
into the parties’ relationships and bargaining
conditions.36
The parties “trust in [the arbitrator’s]
personal judgment to bring to bear considerations
which are not expressed in the contract . . . . The
ablest judge cannot be expected to bring the same
28

experience and competence to bear upon the
determination of a grievance . . . .”37
For these reasons, the Court of Appeals had
rarely invoked public policy to deem nonarbitrable
an otherwise arbitrable CBA dispute. Indeed, it
had declared that judicial restraint is “particularly
appropriate in arbitrations pursuant to public
employment collective bargaining agreements”
because arbitration plays a “critical role” in
“stabilizing labor relations.”38
The Court added
that:
While some case records contain
enough information for a court to make
a penetrating analysis of the scope of the
substantive provisions of the CBA, an
undertaking of that kind is not the
function of the court. A judicial inquiry
of that sort would involve an inapt
flirtation with the merits, or an
inappropriate use of the judicial scalpel
to split the hairs that mark the
perimeters of contractual provisions.39
The Village of Johnson City majority moves in the
opposite direction. It bases its holding on
purported public policy shielding employers’
termination decisions from “the whim” of the
arbitrator. Yet even in cases where a job security
provision does not explicitly refer to economic
distress, courts have affirmed that arbitration was
appropriate. In Whitney Point Cent. Sch. Dist. v.
Whitney Point Teachers’ Assoc., for example, the
parties’ CBA provided that:
All conditions of employment shall be
maintained at not less than the highest
minimum standards in effect in the
District at the time this Agreement is
signed provided that such conditions
shall contribute to the improvement of
the general educational program.40
As in Village of Johnson City, the CBA provided for
binding arbitration of disputes concerning the
“interpretation or application” of a CBA provision.
Due to “economic problems confronting the
[school] district,” three full-time teaching positions
were converted to half-time positions with a
corresponding decrease in salary, causing the
teachers’ union to demand arbitration. The Third
Department ruled, in relevant part, that the dispute
was arbitrable and that “school boards must realize
what the effect of clauses in contracts entails as
applicable to possible future conditions.”
The dissenting judges in Village of Johnson City
conclude not only that the majority is in error, but
that the Court should consider modifying its
jurisprudence to a “more flexible approach”
befitting the “continually evolving” nature of
public policy determinations.41
Bright-line rules,
according to the dissent, are not suited to public
policy decisions because those entrusted with
implementation of public policy “must respond to
everchanging [sic] demands.” These demands
require evaluation of no-layoff clauses “not in a
vacuum but with an eye toward the social and
economic realities in which the parties who are
subject to the CBA live and operate.”42
Although
the post-2008 economic reality is that employers
are experiencing budget shortfalls that force them
to make deep cuts, the Court of Appeals ruled
many years ago that “[a] job security clause is
useless if the public employer is free to disregard it
when it is first needed,” i.e., in hard economic
times.43
A public employer “may not because of
financial difficulties unilaterally abrogate a collective
bargaining agreement.”44
Thus, the Court of
Appeals has stated that “the financial condition of
the city and its ability to fund . . . positions” are
“relevant” considerations for the arbitrator, not for
determining arbitrability.45
Guidance for Union Representatives
Negotiating “No Layoff” Clauses
Whether right or wrong, Village of Johnson City
reflects the current law of this state. As such, it
29

should cause unions whose CBAs are subject to
New York law to reexamine their existing job
security clauses and to use care in negotiating future
ones. Village of Johnson City warns parties that a no-
layoff clause will be enforceable only to the extent
it details the circumstances in which layoffs are
prohibited.
In future collective bargaining for a job security
provision, unions should take the following steps to
increase the likelihood that the provision will be
enforceable:
• Treat (i) the reasons for which the employer
is prohibited from laying off employees, and
(ii) the employees protected by the
provision;
• Ensure that the duration of the no-layoff
protection is reasonable;
• If using the word “layoff,” “termination,”
“reduction in force,” or similar language in
the no-layoff provision, specify whether that
term refers to temporary or permanent job
loss; and
• Be conscious of the surrounding fiscal
conditions at the time the agreement is
reached. For example, if, in times of
economic stress, a no-layoff clause is being
secured in return for contractual give-backs,
make sure that such quid pro quo arrangement
is specified in the CBA and that, if relevant,
legislative (or other regulatory) approval is
obtained.
Alan M. Klinger
212.806.5818
1. 18 N.Y.3d 32, 36-38 (2011) (“Village of Johnson City”).
2. See Bd. of Educ. of Yonkers City Sch. Dist. v. Yonkers Fed’n
of Teachers, 40 N.Y.2d 268, 274-75 (1976) (“Yonkers
Fed’n of Teachers”); Yonkers Sch. Crossing Guard Union of
Westchester Ch., CSEA v. City of Yonkers, 39 N.Y.2d
964, 965 (1976) (“Crossing Guard Union”); In re Board of
Educ. of Watertown City School Dist., 93 N.Y.2d 132, 141
(1999); Hardin & Higgins, Jr., The Developing Labor Law,
Vol. 1, at 1 (BNA 2001).
3. In re: Johnson City Professional Firefighters Local 921, 72
A.D.3d 1235, 1236 (2010).
4. Id. at 1237 (internal citation omitted).
5. Village of Johnson City, 18 N.Y.3d at 38.
6. Id. at 37-38.
7. 39 N.Y.2d at 965.
8. 40 N.Y.2d at 275-76.
9. See, e.g., Whitney Point Cent. Sch. Dist. v. Whitney Point
Teachers’ Assoc., 55 A.D.2d 439 (3d Dep’t 1977).
10. Yonkers Fed’n of Teachers, 40 N.Y.2d at 271.
11. Id. at 275.
12. Id.
13. See, e.g., New York City Transit Auth. v. Transport
Workers Union of Am., Local 100, AFL-CIO, 99 N.Y.2d
1, 6-7 (2002).
14. Wolkstein v. Beth Israel Med. Ctr., 103 Misc.2d
1095, 1097 (Civ. Ct. N.Y. Cnty. 1980).
15. United Rubber, Cork, Linoleum and Plastic Workers of Am.,
AFL-CIO v. Great American Indus., Inc., 479 F. Supp.
216, 231 (S.D.N.Y. 1970).
16. CBS Inc. v. Int’l Photographers, Local 644, 603 F.2d
1061, 1064 (2d Cir. 1979).
17. See In re Napolitano, 264 A.D.2d 928 (3d Dep’t 1999);
Claim of Pelkey, 180 A.D.2d 995, 995-96 (3d Dep’t
1992); State Farm Mut. Auto. Ins. Cos. v. Brooks, 78
A.D.2d 456, 457 (4th Dep’t 1981); In re: Miranda’s
Claim, 13 A.D.2d 571, 573 (1961).
18. CAL. LAB. CODE, § 1400(c).
19. FLORIDA STAT., § 110.107(23).
20. LA. CIV. SERV. R. § 1.19.
21. N.H. ADMIN. RULES, Per § 102.34.
22. BLACK’S LAW DICTIONARY (9th ed. 2009).
23. ROBERTS’ DICT. OF INDUS. RELATIONS (3d ed. 1986).
24. W. VA. CODE ST. R. § 42-5-2.10.
25. Burke v. Bowen, 40 N.Y.2d 264-267 (1976).
26. Id. at 38 (majority opinion).
27. See Yonkers Fed’n of Teachers, 40 N.Y.2d at 275-76.
28. See supra at note 22.
29. N.Y. CIVIL SERVICE LAW § 209(2); N.Y. CPLR § 7501.
30. New York City Transit Auth., 99 N.Y.2d at 7.
30

31
31. Matter of Sprinzen, 46 N.Y.2d 623, 629 (1979); New York
City Transit Auth., 99 N.Y.2d at 6-7.
33. N.Y. CPLR § 7503 (emphasis added).
34. United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S.
574, 578 (1960).
35. Id. at 582-85.
36. Id. at 582.
37. Id.
38. New York City Transit Auth., 99 N.Y.2d at 7-8 (emphasis
added).
39. Watertown City School Dist., 93 N.Y.2d at 142.
40. 55 A.D.2d 439, 440 (3d Dep’t 1977).
41. Village of Johnson City, 18 N.Y.3d at 40-41 (Ciparick, J.,
dissenting) (internal quotation omitted).
42. Id.
44. Piro v. Bowen, 76 A.D.2d 392, 399 (2d Dep’t 1980).

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