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.
TAM's College entered into a one-month marketing contract with NAMS but NAMS failed to fulfill its obligations. TAM's College is now taking legal action against NAMS for breaching the contract. Additionally, TAM's College faces liability for an accident involving one of its employees who was not wearing proper protective clothing on the job. Under the principle of vicarious liability, businesses can be held responsible for torts committed by employees in the course of their work. TAM's College must now deal with the legal consequences of both the contract dispute and potential negligence claims.
This document provides an overview of unions in public administration. It discusses the history of unionization beginning in the late 1800s and key acts that expanded union rights such as the Wagner Act of 1935 and Executive Orders in the 1960s. The organizing process is explained including getting authorization cards, demanding recognition from management, and petitioning the NLRB. Common union campaign tactics are described as well as the NLRB election process. The document outlines collective bargaining and differentiates it between the public and private sectors. It details the federal and state scopes of bargaining and categories of negotiable items. Contract negotiations are discussed as part of the collective bargaining process. Public sector bargaining in Montana is also summarized regarding bargaining unit determinations and differences from NLRB rules
Law is defined as a system of rules that regulates behavior and is usually enforced through institutions. It establishes what must, may, and may not be done. To be considered law, rules must be recognized and binding by the state and have enforcement through consequences like punishment. For a law to be just it should uphold principles like equality, uniformity, certainty, generality, authority, and reasonableness. Legal personality allows entities like corporations to be treated as a single legal person separate from individual members or shareholders.
This document provides an overview of business and labour laws in Pakistan as part of a semester project. It defines key concepts like the legal system, business, law, and different types of business laws. It also outlines various laws prevailing in Pakistan, including contract law, negotiable instruments act, companies ordinance, labour laws like workmen compensation act and factories act. The document aims to educate students on how business laws affect business operations by providing structure, uniformity, enforcement and predictability for commercial transactions and relationships.
This document provides an overview of business and labour laws in Pakistan as part of a semester project. It discusses the key components of the legal system and defines business, law, and the various branches of law. It then examines the purpose of business laws and the sources of business law, including common law, statutory law, and administrative law. The major categories of business law that can affect operations are explored, such as tort, contract, sales, agency, property, bankruptcy, and negotiable instruments. Specific prevailing business and labour laws in Pakistan are also outlined.
The document discusses several key federal labor and employment laws in the United States, including:
1. The National Labor Relations Act of 1935, which established the right of employees to unionize and collectively bargain.
2. The Fair Labor Standards Act of 1938, which set standards for minimum wage, overtime pay, recordkeeping, and child labor.
3. Title VII of the Civil Rights Act of 1964, which prohibited discrimination in employment based on race, color, religion, sex or national origin.
4. The Americans with Disabilities Act of 1990, which prohibits employment discrimination against qualified individuals with disabilities.
The document provides an overview of the purpose and requirements of these major federal statutes that form the
This document discusses contracts and negligence for a business college. The college entered into a contract with a marketing agency to help improve its reputation but faced legal issues. It was sued due to negligence after a staff member was injured for not wearing proper attire. The college is liable through vicarious liability principles.
This document discusses the nature and causes of industrial disputes. It begins by defining industrial disputes as any disagreements between employers and employees related to employment terms, conditions, or non-employment. Common forms of industrial disputes mentioned include strikes, lockouts, gherao, and picketing. The document then discusses the main causes of industrial disputes, which can be economic factors like wages, bonuses, and working conditions, or non-economic factors like unfair treatment of workers. Recent examples of large industrial projects in India that faced protests from farmers or local communities are also summarized. The document concludes by outlining options for both judicial and extrajudicial dispute resolution.
TAM's College entered into a one-month marketing contract with NAMS but NAMS failed to fulfill its obligations. TAM's College is now taking legal action against NAMS for breaching the contract. Additionally, TAM's College faces liability for an accident involving one of its employees who was not wearing proper protective clothing on the job. Under the principle of vicarious liability, businesses can be held responsible for torts committed by employees in the course of their work. TAM's College must now deal with the legal consequences of both the contract dispute and potential negligence claims.
This document provides an overview of unions in public administration. It discusses the history of unionization beginning in the late 1800s and key acts that expanded union rights such as the Wagner Act of 1935 and Executive Orders in the 1960s. The organizing process is explained including getting authorization cards, demanding recognition from management, and petitioning the NLRB. Common union campaign tactics are described as well as the NLRB election process. The document outlines collective bargaining and differentiates it between the public and private sectors. It details the federal and state scopes of bargaining and categories of negotiable items. Contract negotiations are discussed as part of the collective bargaining process. Public sector bargaining in Montana is also summarized regarding bargaining unit determinations and differences from NLRB rules
Law is defined as a system of rules that regulates behavior and is usually enforced through institutions. It establishes what must, may, and may not be done. To be considered law, rules must be recognized and binding by the state and have enforcement through consequences like punishment. For a law to be just it should uphold principles like equality, uniformity, certainty, generality, authority, and reasonableness. Legal personality allows entities like corporations to be treated as a single legal person separate from individual members or shareholders.
This document provides an overview of business and labour laws in Pakistan as part of a semester project. It defines key concepts like the legal system, business, law, and different types of business laws. It also outlines various laws prevailing in Pakistan, including contract law, negotiable instruments act, companies ordinance, labour laws like workmen compensation act and factories act. The document aims to educate students on how business laws affect business operations by providing structure, uniformity, enforcement and predictability for commercial transactions and relationships.
This document provides an overview of business and labour laws in Pakistan as part of a semester project. It discusses the key components of the legal system and defines business, law, and the various branches of law. It then examines the purpose of business laws and the sources of business law, including common law, statutory law, and administrative law. The major categories of business law that can affect operations are explored, such as tort, contract, sales, agency, property, bankruptcy, and negotiable instruments. Specific prevailing business and labour laws in Pakistan are also outlined.
The document discusses several key federal labor and employment laws in the United States, including:
1. The National Labor Relations Act of 1935, which established the right of employees to unionize and collectively bargain.
2. The Fair Labor Standards Act of 1938, which set standards for minimum wage, overtime pay, recordkeeping, and child labor.
3. Title VII of the Civil Rights Act of 1964, which prohibited discrimination in employment based on race, color, religion, sex or national origin.
4. The Americans with Disabilities Act of 1990, which prohibits employment discrimination against qualified individuals with disabilities.
The document provides an overview of the purpose and requirements of these major federal statutes that form the
This document discusses contracts and negligence for a business college. The college entered into a contract with a marketing agency to help improve its reputation but faced legal issues. It was sued due to negligence after a staff member was injured for not wearing proper attire. The college is liable through vicarious liability principles.
This document discusses the nature and causes of industrial disputes. It begins by defining industrial disputes as any disagreements between employers and employees related to employment terms, conditions, or non-employment. Common forms of industrial disputes mentioned include strikes, lockouts, gherao, and picketing. The document then discusses the main causes of industrial disputes, which can be economic factors like wages, bonuses, and working conditions, or non-economic factors like unfair treatment of workers. Recent examples of large industrial projects in India that faced protests from farmers or local communities are also summarized. The document concludes by outlining options for both judicial and extrajudicial dispute resolution.
Public Sector Collective Bargaining: The history and implications of the union bargaining process
Rocky Mountain Public Employer
Labor Relations Association
Presentation by Hal Stratton
July 16, 2010
Tamaya Resort and Spa
Sana Ana Pueblo, New Mexico
This document outlines a study on the interpretation and implementation of laws in subcontracts for construction projects. It discusses the methodology used, including literature review, questionnaires, and interviews. The objectives are to identify the unique legal provisions governing subcontracts and assess the relationships between construction parties. It reviews literature on subcontract definitions, types, and selection criteria. It also examines contractual relationships and liability between parties, including privity of contracts, substituting third parties, and back-to-back arrangements.
This document provides an overview of the legal framework of business in India. It discusses the classification of different types of law, the sources of Indian law including customary law and judicial precedents. It also summarizes key aspects of employment law, intellectual property law, competition law, and mechanisms for dispute resolution in India such as arbitration. The legal system aims to balance incorporating international law with domestic statutes and customs.
This document provides an introduction to business law. It defines law and explains the need for laws in society to regulate behavior. The main branches of law are described as constitutional law, administrative law, criminal law, civil law, and commercial law. Sources of law are explained as statutory law, case law, natural law, English mercantile law, and customs. Key legal concepts such as legal positivism, legal realism, stare decisis, precedent, and civil versus criminal law are introduced. The document concludes by noting how laws regulate all areas of business and factors owners must consider.
This document provides an overview of the legal environment of business. It discusses why laws differ in various countries, including common law, code law, and Islamic law systems. It also outlines three types of international disagreements and methods of international dispute resolution. The document examines intellectual property law and laws affecting the start up and operation of businesses, such as those prohibiting discrimination and ensuring workplace safety. It concludes with a brief discussion of tax laws and consumer protection laws.
ICLG Guide to Construction & Engineering Law, Ireland 2017Matheson Law Firm
The document provides an overview of the International Comparative Legal Guide to Construction & Engineering Law 2017. It includes contributions from law firms around the world on the key issues in construction and engineering law in their respective jurisdictions. The guide covers topics such as standard construction contract types, requirements for legally binding contracts, the concept of letters of intent, dispute resolution mechanisms, procurement regulations, and liability issues among others. It is intended to help construction law practitioners understand the international and cross-border aspects of working in the field.
This document provides an outline for a lecture on mercantile law. It begins with definitions of law and mercantile law. It then lists various types of commercial laws like banking laws, sales laws, mortgages, bankruptcy laws, credit loan laws, and contract laws. Next, it discusses the significance of studying law for understanding contracts, business rights, establishing standards, and maintaining equilibrium. It also notes laws help reduce fraud and ensure ethical conduct. The document then examines the impact of law on society, such as facilitating dispute resolution and maintaining order. Finally, it discusses how laws protect individual rights and liberties.
The document is a presentation from the Sovereignty Education and Defense Ministry on lawfully avoiding government obligations. It begins with a dedication to the principles that individual rights are superior to legislation and that the purpose of laws is to protect absolute individual rights. The introduction explains that government enforcement of alleged obligations is often illegal, as it violates rights, due process, and presumes statuses and obligations that are not proven. The presentation aims to teach how to challenge such enforcement administratively and in court by proving no underlying obligation exists. It defines obligation under California civil law as a legal duty arising from contract or operation of law.
This document discusses product liability laws in Canada. It begins by defining product liability as the area of law where manufacturers are held responsible for injuries caused by their products. It then covers the main types of product liability claims, which include manufacturing defects, design defects, and failure to warn of hazards. Claims can be raised based on negligence, breach of warranty, or strict liability theories. The document also discusses relevant legislation in Canada including the Sale of Goods Act, defenses, evidentiary standards, and product recalls. It notes that Quebec has a distinct civil code-based system from the rest of Canada. In conclusion, Canadian product liability laws aim to protect consumers from defective products.
The document summarizes organized labor's agenda for labor law reform and the political climate surrounding these issues. It discusses elements of labor's agenda such as making union organizing easier. It then notes that while the political climate was favorable to these reforms last year, public opinion has since turned against unions. It concludes that while comprehensive labor law reform may not pass Congress, regulatory changes and NLRB rulings can still advance unions' goals.
This document provides an introduction to business law by defining it, outlining the functional areas it affects, and describing its purposes and classifications. It also lists sources of business law and major federal administrative agencies in both the independent and executive branches that are involved with business law. Finally, it outlines several schools of jurisprudence that have influenced the study and philosophy of law.
This newsletter discusses statutory adjudication and how it can benefit the construction industry in Hong Kong. It provides an overview of current alternative dispute resolution methods like mediation and arbitration and their limitations in resolving payment disputes quickly. Statutory adjudication addresses this gap by providing a fast-track dispute process that delivers a temporary binding decision within a strict timetable of around 4 months. It also gives the unpaid party the right to suspend work if the adjudicated payment is not made, as well as prohibiting "pay-when-paid" clauses that can delay payments down the supply chain. While some question how just the short adjudication timetable is, overall it aims to ease cash flow problems in the industry through prompt resolution of payment disputes.
When Is The Surety Liable For Attorneys Feesmcarruthers
This paper examines both attorneys’-fees and interest awards against sureties on Miller Act payment-bond claims. It also suggests several policy arguments against imposing attorneys’ fees and interest awards on sureties.
By: Daniel R. Hansen and William H. Sturges
Overview of the History and Status of Teachers’ UnionsJeremy Knight
Teachers’ unions are a powerful force in local, state, and federal politics, but Janus vs. the American Federation of State, County, and Municipal Employees (AFSCME) could change that. At the heart of this case is a key source of union revenue: agency fees.
Public sector unions, including teachers’ unions, collect revenue from the professionals they represent. From members, they collect membership dues that can be used for a wide range of activities, including political advocacy. In 22 states and D.C., unions can collect so-called “agency fees” from nonmembers. These fees are typically less than full membership dues and enable workers to opt out of supporting unions’ political activities while still supporting unions’ collective bargaining activities that benefit all workers.
If the Court overturns long-standing precedent and rules mandatory agency fees unconstitutional, it will likely have far-reaching effects on unions’ finances, and subsequently, on their power and influence. But to fully understand the potential effects of the Janus decision, it is necessary to first understand the history and current context in which teachers’ unions are operating. We created this slide deck to ensure that sector leaders, reporters, and commentators have a reliable resource to access this key information.
The deck begins with an overview of the history of public and private sector unions dating back to the early 1900s. It then provides a summary of the history and current status of teachers’ unions specifically: major successes related to collective bargaining, controversy and criticism surrounding their increasing political activities, and their response to the increasing accountability in federal education legislation. We then offer current data and information on the nation’s two largest teachers’ unions, including membership data, financial data, a description of their organizational structure and the services they provide, and an overview of recent activities including teacher strikes and walkouts. We conclude the deck by summarizing the Janus case and its potential impacts on teachers’ unions and offering questions yet to be answered about the future of teachers’ unions post-Janus.
This analysis offers an accurate and objective set of information to those wanting to inform their understanding of this historic case.
A California federal court recently granted a life insurance carrier's motion to dismiss a putative class action claiming that the carrier charged compound interest on life insurance policy loans without proper authorization and in violation of California state law...
LAWS1100 Nickolas James Business law 4_e_----_(chapter_6_carelessly_causing_h...throwaw4y
Johnny owns a restaurant where an incident occurred while he was not present. A child spilled a drink on the floor which another customer, an older woman, then slipped on half an hour later, knocking herself unconscious. The woman's son was then punched by Johnny's assistant manager Cathy, also knocking him unconscious.
While Cathy committed a crime and tort by punching the customer, Johnny is unlikely to be liable for her criminal actions. However, as the owner and operator of the restaurant, Johnny may still face negligence liability if it can be shown he owed a duty of care to customers, that duty was breached by leaving the spilled drink on the floor, and this caused harm to the older woman. The chapter will
This document provides an overview of business and corporate law concepts. It defines law as a set of rules enforced by the state to regulate human relationships and economic activity. The document outlines two main types of law: public law, which governs relationships between individuals and the state, and private law, which governs relationships between private individuals. It defines a contract as a legally enforceable agreement that creates obligations, and notes that for an agreement to become a contract it must meet several essential elements, such as offer and acceptance, lawful consideration, capacity of parties, and certainty of terms.
The document summarizes concerns about the "Worker Freedom from Employer Intimidation Act" signed into law in New Jersey. It argues the law likely violates the First Amendment and is preempted by federal labor law. Specifically, it asserts that the law burdens employers' free speech rights to communicate with employees about political matters, as protected under the National Labor Relations Act. It also claims the law could conflict with the Federal Election Campaign Act, which regulates political communications between corporations and employees.
The International Comparative Legal Guide to Construction & Engineering Law 2018Matheson Law Firm
This document provides an overview of the International Comparative Legal Guide to Construction & Engineering Law 2018. It includes contributions from law firms and attorneys in multiple jurisdictions around the world. The guide contains general chapters on various construction law topics as well as country-specific question and answer chapters on construction and engineering law in each jurisdiction.
The document discusses the constitutional foundations and authority of federal administrative agencies. It notes that while the Constitution does not explicitly authorize federal agencies, the Supreme Court has found implied authority for Congress to create executive agencies through cases like McCulloch v. Maryland. However, agencies are limited by principles like separation of powers, nondelegation of legislative powers to agencies, and individual constitutional rights like due process and equal protection.
Texas has more immigrants than Oklahoma and New Mexico have people. Among states, only California has more immigrants than Texas; New York has a similar number.
School districts are highly dependent on local revenue generated through property taxes. The declining housing market has therefore taken a toll on school districts. Property values have declined in nearly 88 percent of the school districts located in the Long Island and Mid-Hudson regions. Since these districts derive roughly 75 percent of their revenue locally, reduced property values lead to revenue stress.
Public Sector Collective Bargaining: The history and implications of the union bargaining process
Rocky Mountain Public Employer
Labor Relations Association
Presentation by Hal Stratton
July 16, 2010
Tamaya Resort and Spa
Sana Ana Pueblo, New Mexico
This document outlines a study on the interpretation and implementation of laws in subcontracts for construction projects. It discusses the methodology used, including literature review, questionnaires, and interviews. The objectives are to identify the unique legal provisions governing subcontracts and assess the relationships between construction parties. It reviews literature on subcontract definitions, types, and selection criteria. It also examines contractual relationships and liability between parties, including privity of contracts, substituting third parties, and back-to-back arrangements.
This document provides an overview of the legal framework of business in India. It discusses the classification of different types of law, the sources of Indian law including customary law and judicial precedents. It also summarizes key aspects of employment law, intellectual property law, competition law, and mechanisms for dispute resolution in India such as arbitration. The legal system aims to balance incorporating international law with domestic statutes and customs.
This document provides an introduction to business law. It defines law and explains the need for laws in society to regulate behavior. The main branches of law are described as constitutional law, administrative law, criminal law, civil law, and commercial law. Sources of law are explained as statutory law, case law, natural law, English mercantile law, and customs. Key legal concepts such as legal positivism, legal realism, stare decisis, precedent, and civil versus criminal law are introduced. The document concludes by noting how laws regulate all areas of business and factors owners must consider.
This document provides an overview of the legal environment of business. It discusses why laws differ in various countries, including common law, code law, and Islamic law systems. It also outlines three types of international disagreements and methods of international dispute resolution. The document examines intellectual property law and laws affecting the start up and operation of businesses, such as those prohibiting discrimination and ensuring workplace safety. It concludes with a brief discussion of tax laws and consumer protection laws.
ICLG Guide to Construction & Engineering Law, Ireland 2017Matheson Law Firm
The document provides an overview of the International Comparative Legal Guide to Construction & Engineering Law 2017. It includes contributions from law firms around the world on the key issues in construction and engineering law in their respective jurisdictions. The guide covers topics such as standard construction contract types, requirements for legally binding contracts, the concept of letters of intent, dispute resolution mechanisms, procurement regulations, and liability issues among others. It is intended to help construction law practitioners understand the international and cross-border aspects of working in the field.
This document provides an outline for a lecture on mercantile law. It begins with definitions of law and mercantile law. It then lists various types of commercial laws like banking laws, sales laws, mortgages, bankruptcy laws, credit loan laws, and contract laws. Next, it discusses the significance of studying law for understanding contracts, business rights, establishing standards, and maintaining equilibrium. It also notes laws help reduce fraud and ensure ethical conduct. The document then examines the impact of law on society, such as facilitating dispute resolution and maintaining order. Finally, it discusses how laws protect individual rights and liberties.
The document is a presentation from the Sovereignty Education and Defense Ministry on lawfully avoiding government obligations. It begins with a dedication to the principles that individual rights are superior to legislation and that the purpose of laws is to protect absolute individual rights. The introduction explains that government enforcement of alleged obligations is often illegal, as it violates rights, due process, and presumes statuses and obligations that are not proven. The presentation aims to teach how to challenge such enforcement administratively and in court by proving no underlying obligation exists. It defines obligation under California civil law as a legal duty arising from contract or operation of law.
This document discusses product liability laws in Canada. It begins by defining product liability as the area of law where manufacturers are held responsible for injuries caused by their products. It then covers the main types of product liability claims, which include manufacturing defects, design defects, and failure to warn of hazards. Claims can be raised based on negligence, breach of warranty, or strict liability theories. The document also discusses relevant legislation in Canada including the Sale of Goods Act, defenses, evidentiary standards, and product recalls. It notes that Quebec has a distinct civil code-based system from the rest of Canada. In conclusion, Canadian product liability laws aim to protect consumers from defective products.
The document summarizes organized labor's agenda for labor law reform and the political climate surrounding these issues. It discusses elements of labor's agenda such as making union organizing easier. It then notes that while the political climate was favorable to these reforms last year, public opinion has since turned against unions. It concludes that while comprehensive labor law reform may not pass Congress, regulatory changes and NLRB rulings can still advance unions' goals.
This document provides an introduction to business law by defining it, outlining the functional areas it affects, and describing its purposes and classifications. It also lists sources of business law and major federal administrative agencies in both the independent and executive branches that are involved with business law. Finally, it outlines several schools of jurisprudence that have influenced the study and philosophy of law.
This newsletter discusses statutory adjudication and how it can benefit the construction industry in Hong Kong. It provides an overview of current alternative dispute resolution methods like mediation and arbitration and their limitations in resolving payment disputes quickly. Statutory adjudication addresses this gap by providing a fast-track dispute process that delivers a temporary binding decision within a strict timetable of around 4 months. It also gives the unpaid party the right to suspend work if the adjudicated payment is not made, as well as prohibiting "pay-when-paid" clauses that can delay payments down the supply chain. While some question how just the short adjudication timetable is, overall it aims to ease cash flow problems in the industry through prompt resolution of payment disputes.
When Is The Surety Liable For Attorneys Feesmcarruthers
This paper examines both attorneys’-fees and interest awards against sureties on Miller Act payment-bond claims. It also suggests several policy arguments against imposing attorneys’ fees and interest awards on sureties.
By: Daniel R. Hansen and William H. Sturges
Overview of the History and Status of Teachers’ UnionsJeremy Knight
Teachers’ unions are a powerful force in local, state, and federal politics, but Janus vs. the American Federation of State, County, and Municipal Employees (AFSCME) could change that. At the heart of this case is a key source of union revenue: agency fees.
Public sector unions, including teachers’ unions, collect revenue from the professionals they represent. From members, they collect membership dues that can be used for a wide range of activities, including political advocacy. In 22 states and D.C., unions can collect so-called “agency fees” from nonmembers. These fees are typically less than full membership dues and enable workers to opt out of supporting unions’ political activities while still supporting unions’ collective bargaining activities that benefit all workers.
If the Court overturns long-standing precedent and rules mandatory agency fees unconstitutional, it will likely have far-reaching effects on unions’ finances, and subsequently, on their power and influence. But to fully understand the potential effects of the Janus decision, it is necessary to first understand the history and current context in which teachers’ unions are operating. We created this slide deck to ensure that sector leaders, reporters, and commentators have a reliable resource to access this key information.
The deck begins with an overview of the history of public and private sector unions dating back to the early 1900s. It then provides a summary of the history and current status of teachers’ unions specifically: major successes related to collective bargaining, controversy and criticism surrounding their increasing political activities, and their response to the increasing accountability in federal education legislation. We then offer current data and information on the nation’s two largest teachers’ unions, including membership data, financial data, a description of their organizational structure and the services they provide, and an overview of recent activities including teacher strikes and walkouts. We conclude the deck by summarizing the Janus case and its potential impacts on teachers’ unions and offering questions yet to be answered about the future of teachers’ unions post-Janus.
This analysis offers an accurate and objective set of information to those wanting to inform their understanding of this historic case.
A California federal court recently granted a life insurance carrier's motion to dismiss a putative class action claiming that the carrier charged compound interest on life insurance policy loans without proper authorization and in violation of California state law...
LAWS1100 Nickolas James Business law 4_e_----_(chapter_6_carelessly_causing_h...throwaw4y
Johnny owns a restaurant where an incident occurred while he was not present. A child spilled a drink on the floor which another customer, an older woman, then slipped on half an hour later, knocking herself unconscious. The woman's son was then punched by Johnny's assistant manager Cathy, also knocking him unconscious.
While Cathy committed a crime and tort by punching the customer, Johnny is unlikely to be liable for her criminal actions. However, as the owner and operator of the restaurant, Johnny may still face negligence liability if it can be shown he owed a duty of care to customers, that duty was breached by leaving the spilled drink on the floor, and this caused harm to the older woman. The chapter will
This document provides an overview of business and corporate law concepts. It defines law as a set of rules enforced by the state to regulate human relationships and economic activity. The document outlines two main types of law: public law, which governs relationships between individuals and the state, and private law, which governs relationships between private individuals. It defines a contract as a legally enforceable agreement that creates obligations, and notes that for an agreement to become a contract it must meet several essential elements, such as offer and acceptance, lawful consideration, capacity of parties, and certainty of terms.
The document summarizes concerns about the "Worker Freedom from Employer Intimidation Act" signed into law in New Jersey. It argues the law likely violates the First Amendment and is preempted by federal labor law. Specifically, it asserts that the law burdens employers' free speech rights to communicate with employees about political matters, as protected under the National Labor Relations Act. It also claims the law could conflict with the Federal Election Campaign Act, which regulates political communications between corporations and employees.
The International Comparative Legal Guide to Construction & Engineering Law 2018Matheson Law Firm
This document provides an overview of the International Comparative Legal Guide to Construction & Engineering Law 2018. It includes contributions from law firms and attorneys in multiple jurisdictions around the world. The guide contains general chapters on various construction law topics as well as country-specific question and answer chapters on construction and engineering law in each jurisdiction.
The document discusses the constitutional foundations and authority of federal administrative agencies. It notes that while the Constitution does not explicitly authorize federal agencies, the Supreme Court has found implied authority for Congress to create executive agencies through cases like McCulloch v. Maryland. However, agencies are limited by principles like separation of powers, nondelegation of legislative powers to agencies, and individual constitutional rights like due process and equal protection.
Texas has more immigrants than Oklahoma and New Mexico have people. Among states, only California has more immigrants than Texas; New York has a similar number.
School districts are highly dependent on local revenue generated through property taxes. The declining housing market has therefore taken a toll on school districts. Property values have declined in nearly 88 percent of the school districts located in the Long Island and Mid-Hudson regions. Since these districts derive roughly 75 percent of their revenue locally, reduced property values lead to revenue stress.
Most recently, the strengthening economy has improved the budgetary outlooks of most state and local governments, leading them to reduce their pace of fiscal tightening. At the same time, though, fiscal policy at the federal level has become significantly more restrictive. In particular, the expiration of the payroll tax cut, the enactment of tax increases, the effects of the budget caps on discretionary spending, the onset of the sequestration, and the declines in defense spending for overseas military operations are expected, collectively, to exert a substantial drag on the economy this year. The Congressional Budget Office (CBO) estimates that the deficit reduction policies in current law will slow the pace of real GDP growth by about 1-1/2 percentage points during 2013, relative to what it would have been otherwise.
The document summarizes Novell's roadmap for Open Enterprise Server 2 (OES2), including upcoming support pack 3 (SP3). SP3 will include enhancements to Domain Services for Windows, CIFS, QuickFinder, and iFolder. It also discusses the "Remote Office Appliance" which will help centrally manage remote sites. Long term, Novell is focusing on simplification, interoperability, and the "Ponderosa" vision of decoupling workloads and deploying appliances for the cloud or on-premise.
"In 2013, the Non-Profit Revitalization Act was signed into law, and requires the adoption by non-profit corporations of robust financial oversight requirements, conflict-of-interest policies, and whistleblower policies. Although the Non-Profit Revitalization Act improved the accountability of New York’s non-profit corporations, including the CUNY college foundations, the New York Not-for-Profit Corporation Law (which the Act amended) does not provide specific guidance regarding how non-profit foundations use their assets."
This document provides a summary of collective bargaining units in New York City government as of December 31, 2012. It includes the union name, job titles covered, headcount of positions, average compensation for those titles, and the estimated cost of a 1% salary increase for each bargaining unit. In total it represents 292,096 employees across 85 different unions with an average compensation of $103,239 and a total estimated cost of $301,556,939 for a 1% salary increase across all units.
Nearly half of the City’s property is
tax exempt – 49.5 percent, compared to 32.0 percent for
the median city. This is due to the presence of Syracuse
University and other colleges, as well as hospitals and
government buildings. Meanwhile, eight percent of the
properties are tax delinquent.3 These factors limit the ability
of the City to fully collect property taxes, and force it to be
more dependent on other revenue sources.
The document summarizes the fiscal challenges facing the small city of Salamanca, NY. It notes that Salamanca has a declining population and tax base, with high poverty and unemployment rates. The city had benefited from revenues from a nearby casino but lost this funding source due to a dispute. As a result, the city depleted its reserves and now faces a $2.5 million budget shortfall. The state provided a one-time $5 million loan but the city will require ongoing assistance.
The document discusses several key points about cyber warfare and coding:
1. Coding is a form of maneuver in cyber warfare, as code can be changed and adapted quickly to respond to new threats or vulnerabilities. Technological agility will be important in cyber warfare where there are no compensating physical assets.
2. Cyber situational awareness is different than traditional battlespace awareness, but they should still be related. Integrating cyber and physical target data will be important for coordination.
3. Culture is important in cyber operations and cannot be done in isolation. Participating in communities of practice and using open source tools and techniques will be necessary to learn from others and adapt quickly to changes.
MPI TechCon 14 - The Evolution of Audience Response SystemsJohn Pytel
This document discusses the evolution of audience response systems (ARS) and compares different types of ARS technologies. It begins with an introduction to ARS and their purpose in facilitating real-time engagement and participation between presenters and audiences. It then examines the advantages and disadvantages of the three main types of ARS: hardware-based systems, SMS-based systems, and web-based systems. It concludes that while all ARS types have improved, web-based systems now provide the best balance of accessibility, functionality, cost, and scalability.
There are five primary reasons for charter closures – financial (41.7 percent), mismanagement (24 percent), academic (18.6 percent), district obstacles (6.3 percent) and facilities (4.6 percent).
Investment in inland transport infrastructure across the OECD has declined to a record low of 0.8% of GDP in 2013, falling back to 1995 levels. Investment levels in Central and Eastern European countries halved since 2009, accounting for 1% of GDP compared to 1.9% in 2009. Mature economies increasingly invest in rail while transition economies focus on roads. The volume of investment doubled in India since 2005 but its share of GDP declined as GDP grew faster than investment.
While the non-oil private sector is relatively small in Saudi Arabia, it has potential to drive much of the growth. Already during the 2003–13 period, the non-oil private sector outperformed the economy as a whole, albeit starting from a low base. It grew at about 10 percent annually, much faster than the overall 6 percent GDP growth rate. Growth was broadly based, with consumption-based sectors such as transport, communications, retail and wholesale trade, and business services growing the fastest.
This document provides an overview of Puerto Rico's financial challenges, including:
1) Puerto Rico has experienced 12 consecutive budget deficits and has a high and growing debt burden of 90% of GDP.
2) The economy entered recession in 2006 and has yet to emerge, exacerbating the financial problems.
3) Puerto Rico relies heavily on federal subsidies and has limited prospects for long-term growth due to its dependence on these subsidies and transfers.
The document summarizes the results of a survey of corporate tax directors on state tax issues. It finds that California and New York are viewed as having the least fair and predictable tax environments due to their aggressive pursuit of tax revenue through tactics like asserting nexus and discretionary authority. States are increasingly looking to tax out-of-state businesses through economic nexus rules and by taxing a higher percentage of revenues from sales. The sourcing of taxable income from services is also an ongoing challenge and area of litigation as states disagree on the cost of performance vs. market-based approaches.
This document examines how susceptible jobs are to computerization. It develops a new methodology to estimate the probability of computerization for 702 occupations based on their characteristics. The study finds that about 47% of US jobs are at risk of computerization. It also finds that wages and education levels are negatively correlated with an occupation's probability of being computerized. The document provides historical context on technological unemployment and reviews literature on how computerization has impacted jobs.
Given the city’s relative fiscal health, is there a need to look to budget options? The simple answer is, “of course.” There is never enough money to meet all of the needs expressed by the city’s communities. And besides the need for more funds, there can be changes that could help improve equity and efficiency in the city’s spending and taxation—a benefit that could be associated with some of the budget options we present.
a) Maintaining approximate compensation parity among employees within the same employment categories (for example, among junior software engineers);
b. Maintaining certain compensation relationships among employees across different employment categories (for example, among junior software engineers relative to senior software engineers)
This handbook is a key document that sets out the financial framework for academy trusts reflecting their status as companies, charities and public bodies.
On average, California’s public sector workers are more highly educated. Of full-time workers, 55% hold a four-year college degree in the public sector compared to 35% in the private sector. Educational attainment is the single most important predictor of earnings—thus it plays a vital role in this analysis. On average, California state and local governments pay college-educated labor less than private employers. The earnings differential is greatest for professional employees, lawyers and doctors. On the other hand, the public sector appears to set a floor on compensation. The earnings of those with a high school degree or less is higher in state and local government than it is for similar workers in the private sector. There are other significant personnel differences between the public and private sector workforces. The age (median) of a typical worker in state and local government is 44 compared to 40 in the private sector. Furthermore, the state and local government workforce has more women (55%) compared to the private sector (40%).
BHR 3565, Employment Law 1 Course Learning Outcomes fMargaritoWhitt221
BHR 3565, Employment Law 1
Course Learning Outcomes for Unit VI
Upon completion of this unit, students should be able to:
6. Explain the authority of unions in the workplace.
6.1 Outline seven different areas or processes in collective bargaining that are of interest to you.
Course/Unit
Learning Outcomes
Learning Activity
6 Unit Lesson Chapter 16 and 17
6.1
Unit Lesson
Chapter 15 and 17
Unit VI PowerPoint Presentation
Reading Assignment
Chapter 15: Collective Bargaining
Chapter 16: Picketing and Strikes
Chapter 17: The Enforcement and Administration of the Collective Agreement, pp. 549-567, 577
Unit Lesson
Studying the history of labor laws in the United States is a bit like looking at a pendulum in a clock – it swings
one way until it reaches the extreme of its movement, and then it moves back the other way. By the beginning
of the 20th century, employers had become powerful as a result of the Industrial Revolution, and employees
were often at the mercy of the policies that employers instituted and the wages that employers were willing to
pay. As you can imagine, that power in the hands of employers sometimes led to employers taking advantage
of and even abusing employees. In 1932, Congress passed the Norris-LaGuardia Act and in 1935, the
Wagner Act (also called the National Labor Relations Act or NLRA).
These acts declared certain actions by employers to be illegal and empowered unions to form to represent
workers in dealing with employers, thus limiting and, in some cases eroding, the power that employers had
exercised over employees. Although the increased power of unions was, in theory, good for employees, in too
many cases, unions used their new power to improperly convince employees to allow the unions to represent
them and to improperly force employers to make concessions to employees.
There are still cases in which either management (employers) or labor (unions) allege that the other has
violated some federal law that establishes what management and labor cannot do in dealing with employees
and each other. However, the federal law framework for labor relations is now in place, and there are other
federal laws that influence the relationship between employers and employees.
Collective Bargaining
Collective bargaining is the exertion of force by employees and employers on each other to force an
agreement (Cihon & Castagnera, 2017). Is collective bargaining a right or a privilege? Have unions helped the
economy or hurt it? Do unions help the worker or politicians? Is the United States going broke because of
unions and collective bargaining? Do unions promote market inefficiency in workers? These are questions
that many are asking. The answers are not clear.
UNIT VI STUDY GUIDE
Collective Bargaining
BHR 3565, Employment Law 2
UNIT x STUDY GUIDE
Title
Collective bargaining gives workers power in numbers to negotiate for increased wages, benefi ...
The document discusses collective bargaining and positional bargaining. It notes that positional bargaining can lead parties to view each other as dishonest and damage relationships. Each party must determine the farthest position from their starting point that is still favorable. Parties are responsible for presenting proposals and counterproposals. This allows understanding of each position. However, emphasizing opposing views can harm labor-management relations. The document calls for a style of negotiation that does not pit the parties against each other.
Employee Rights Protected From Employer DiscriminationAshley Lott
According to the document, Section 7 of the NLRA protects employee rights from employer discrimination, including the right to form or join a union and engage in collective bargaining. Drake and Keeler were discharged for their protected concerted activity of discussing poor working conditions with their employer. Section 8 makes it an unfair labor practice for employers to interfere with protected employee rights. The document discusses the rights protected by Sections 7 and 8 of the NLRA.
TAM's College has contracted with various agencies to help promote the college and handle legal matters. NAMS, a marketing firm, broke their contract to provide intensive marketing for one month. As a result, TAM's took legal action against NAMS for breaching the contract. Additionally, a security guard was sent out on duty without proper uniform in violation of the college's policies. During his shift, the guard was injured in an accident. The college denied the guard's compensation claim, citing his failure to follow the uniform policy. The guard's family is now taking legal action against the college.
This document discusses the anatomy of industrial conflicts by defining industrial disputes and outlining the key types of disputes.
It begins by defining an industrial dispute according to Indian law. It then describes the essential components of a dispute and how courts interpret disputes.
The document goes on to classify industrial disputes into four main types: interest disputes, grievance disputes, disputes over unfair labor practices, and recognition disputes. It provides details on each type of dispute and how they differ in terms of issues, resolution processes, and impacts on workers, employers, and the economy.
This document is a presentation on "Conditions for successful functioning: Comparative Analysis" presented by Malvade Akanksha Niket. It discusses the concept, origin, definitions, nature, importance and process of collective bargaining. It analyzes essential conditions for successful collective bargaining and compares systems in India, Japan and the United States. It also discusses an important case law on collective bargaining and concludes that certain pre-conditions must be fulfilled for collective bargaining to be effective and successful.
Unionization, Collective Bargaining, And DiscriminationCarmen Sanborn
The document discusses several topics related to unions and collective bargaining, including:
- The power unions can hold over management and differing views on unionization.
- How Governor Scott Walker was able to pass legislation limiting collective bargaining for public sector unions in Wisconsin despite facing opposition.
- The process of collective bargaining between employers/management and labor unions, including determining appropriate bargaining units and reaching collective bargaining agreements.
- Arguments for and against public sector unions' right to collectively bargain.
TextSeaquist, G. (2015). Employee and labor relations A practic.docxarnoldmeredith47041
Text
Seaquist, G. (2015). Employee and labor relations: A practical guide. San Diego: Bridgepoint Education
· Chapter 7: At the Bargaining Table
· Chapter 8: Grievances, Mediation, and Arbitration
7.1 Collective Bargaining
What is collective bargaining, and why is it such an essential right of organized labor? The theory behind collective bargaining is that it reduces the power differential between management and workers, making the relationship more equal; by compelling management to come to the table and meet with workers, there is a significant shift in power. This section sets the stage for the process of bargaining. It explores what it means that unions are the exclusive representatives of their bargaining unit and reviews the three classifications of bargaining subjects: mandatory, permissive, and illegal.
The Principle of Exclusive Representation
In Chapter 4 we saw that a first step of unionization was for workers to identify who should be a member of the bargaining unit. Once that was established, workers in the designated bargaining unit signed authorization cards, and if at least 30% of the workers voted to unionize, the process of moving toward an election could begin. If the prerequisites were met and an election took place, the National Labor Relations Board (NLRB) certified the union, which meant it then became the exclusive representative of that bargaining unit.
Exclusive representation is an important concept that is found in Sections 8(b) and 9(a) of the Labor Management Relations Act of 1947. Those sections explicitly empower a union that represents a majority of the employees in a bargaining unit to act as all employees’ exclusive representation in collective bargaining.
Exclusive representation has a number of meanings. One is that the employer may not bargain with any other employees, no matter how well intentioned the conversation. Nor may the employer engage in discussions with another union purporting to represent some of the workers. The certified union is the only one with whom the employer may deal.
Exclusive representation obligates all workers in the bargaining unit to participate in union activities, though individuals may choose not to be a member of the union if they have that option. In many states, by law, workers cannot be mandated to join a union or pay dues as a condition of employment. These are referred to as right-to-work states. Despite the fact that the bargaining unit may include workers who do not agree with the union or its philosophy, the union has the duty to represent each worker equally and without bias, no matter their status (union or nonunion; dues paying or not).
In the News: Challenging the Right to Exclusive Representation
Twenty-seven thousand home care workers are part of a union that represents workers who are paid by the state to care for disabled or elderly patients. The National Right to Work Legal Defense Foundation filed a lawsuit in 2014, however, challenging the union’s r.
Collective bargaining is a voluntary process used by workers/unions and employers to negotiate terms of employment through establishing collective agreements. It allows both parties to have an equal voice to reach fair agreements and prevent costly disputes. Key aspects of collective bargaining include unionization, negotiations, administration and interpretation of agreements covering pay, hours and conditions. Indian law recognizes collective bargaining through statutes like the Industrial Disputes Act and Trade Union Act. The collective bargaining process typically involves forming a union, making demands, negotiations, forming agreements, potential strikes and conciliation.
Illigality and public policy details by oxfordFAROUQ
The document discusses illegal contracts under English law. It defines statutory and common law illegality. Statutory illegality refers to contracts that violate statutes, like prohibitions on selling knives or body parts. Common law illegality includes contracts to commit crimes, civil wrongs, interfere with justice, deny court jurisdiction, or prejudice the state. Historically, contracts furthering sexual immorality were also illegal, though views have changed. Illegal contracts are generally unenforceable, though exceptions exist depending on factors like party fault and benefits conferred.
Unit5 - Individual Project TemplateStudents should submit a 8-10.docxdickonsondorris
Unit5 - Individual Project Template
Students should submit a 8-10 content slide PowerPoint with speaker notes showing all calculations, including the following:
1-What is meant by budget variance?
Please discuss
2-What is an effective way to incorporate variance analysis into the budget process?
Please discuss
3-What are the differences between labor and material variances?
Please discuss
4-How is a quantity variance different from a rate variance?
Please discuss
5-What are the subcomponents of fixed overhead?
Please discuss
6-What are the subcomponents of variable overhead?
Please discuss
7-What is the lowest possible price you could offer to this potential customer (You know that we have sufficient capacity, without working overtime and without adding any new equipment, to make this order)? Please show the calculations.
Please discuss
8-In terms of capacity, under what conditions would offering this lowest possible price be a bad decision? Why?
Please discuss
9-You have been considering investing in automation to eliminate some factory labor if you get this large order. This technology advancement will cost an added $100,000/yr. to lease (net of taxes), but it will reduce labor cost/unit on the customer's units by 50%. How would this change the lowest possible price you could offer to this potential customer and at least still break even? Please show the calculations.
Please discuss
60
Chapter Three
Employment Law and
Federal Agencies
This chapter covers federal law and federal agencies that regulate employ-
ment, with particular emphasis on labor relations. The primary labor rela-
tions laws include the Railway Labor Act, Norris-LaGuardia Act, Wagner
Act (as amended by Taft-Hartley and later legislation), Landrum-Griffin
Act, and Civil Service Reform Act. The chapter gives an overview of the
statutes and major government agencies, as well as examples of the agen-
cies’ organizational structures. This chapter also examines some of the
effects of how laws are enforced by federal government agencies and how
employees use protections granted by some employment laws.
In studying this chapter, keep the following questions in mind:
1. What specific types of activities are regulated?
2. In what areas have regulations been extended or retracted?
3. What employee groups are excluded or exempted from various
regulations?
4. How do administrative agencies interact with employers and unions in
implementing laws and regulations?
OVERVIEW
Statutory employment laws result from the interaction of the positions of a
variety of interest groups in society. When a pluralistic coalition of interest
groups emerges, the climate necessary for passage is created. 1 New laws
or the amendment of existing laws requires the bonding of interest groups
1 For an extended and insightful treatment of the interaction between labor organizations
and the state, see R. J. Adams,”The Role of the State in Industr ...
This document discusses how courts' approaches to construing exemption clauses have changed since the implementation of the Unfair Contract Terms Act 1977 (UCTA). Prior to UCTA, courts used rules of construction and interpretation to limit the scope of exemption clauses and protect weaker parties. UCTA codified elements of common law and made it easier for courts to construe clauses by subjecting them to a test of reasonableness. While UCTA and other legislation addressed some issues, weaknesses remain regarding transparency and the broad application of common law rules. The implementation of UCTA significantly changed how judges construe exemption clauses by providing a statutory framework and restricting strained interpretations.
C H A P T E R 15 Collective BargainingEmployees join unions TawnaDelatorrejs
C H A P T E R 15 Collective Bargaining
Employees join unions to gain some influence over their working conditions and wages; that influence is achieved through the process called collective bargaining. Section 8(d) of the National Labor Relations Act (NLRA) defines collective bargaining as [t]he performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement or any question arising thereunder. . . . This process of meeting and discussing working conditions is actually a highly stylized and heavily regulated form of economic conflict. Within the limits of conduct spelled out by the National Labor Relations Board (NLRB) under the NLRA, the parties exert pressure on each other to force some concession or agreement. The union’s economic pressure comes from its ability to withhold the services of its members—a strike. The employer’s bargaining pressure comes from its potential to lock out the employees or to permanently replace striking workers. The NLRB and the courts, through their interpretation and administra- tion of the NLRA, have limited the kinds of pressure either side may exert and how such pressure may be applied. This chapter examines the collective bargaining process and the legal limits placed on that process.
15-1 The Duty to Bargain
An employer is required to recognize a union as the exclusive bargaining representa- tive of its employees when a majority of those employees support the union. The union may demonstrate its majority support either through signed authorization cards or by winning a representation election. Once aware of the union’s majority support, the employer must recognize and bargain with the union according to the process spelled out in Section 8(d). Section 8(a)(5) makes it an unfair labor practice for an employer to refuse to bargain with the representative of its employees, and Section 8(b)(3) makes it an unfair practice for a union representing a group of employees to refuse to bargain with their employer. Although the NLRA imposes an obligation to bargain collectively upon both employer and union, it does not control the results of the bargaining process. Section 8(d) makes it clear that the obligation to bargain “does not compel either party to agree to a proposal or require the making of a concession.” The act thus reflects an ambivalence regarding the duty to bargain in good faith. The parties, to promote industrial relations harmony, are required to come together and negotiate, but in deference to the principle of freedom of contract, they are not required to reach an agreement. This tension between the goal of promoting industrial peace and the principle of freedom of contract underlies the various NLRB and court decisions dealing with the duty to bargain. The accommodation of these conflicting ideas makes the ar ...
This document provides an overview of India's labor laws and industrial relations system. It discusses key topics including:
- The main labor laws that govern industrial relations, wages, working conditions, and social security.
- The roles of trade unions, employer organizations, and the government in industrial relations.
- The mechanisms used to prevent and resolve industrial disputes, including conciliation, arbitration, and labor courts.
- Recent amendments made to various labor laws regarding issues like wages, bonuses, and maternity benefits.
- The objectives and roles of industrial relations in promoting harmonious relations between management and workers.
So in summary, it outlines the main components of India's labor law framework and industrial relations
This document discusses labor law and employment law. It explains that employment law regulates the employment relationship between employers and employees by creating rights and responsibilities. The key aspects of employment law covered are creating employment through recruitment and hiring, maintaining employment by establishing contractual terms and conditions or statutory rights, and terminating employment which includes dismissals and potential litigation. The document also briefly discusses English civil law as it relates to resolving employment disputes through compensation or injunctions in employment tribunals.
Collective bargaining allows employers and employees to negotiate terms of employment. Republicans in Iowa now want to eliminate this from the Iowa Code as many states have done away with collective bargaining for public workers. Getting rid of collective bargaining affects all public union employees such as police officers, firefighters, teachers, and others. It determines conditions like wages, benefits, and protections for workers.
This document summarizes key aspects of labour laws and industrial relations in India. It outlines the various labour laws in India related to areas like industrial relations, wages, working conditions, and social security. These laws are enacted by both central and state governments. The document also describes the industrial disputes resolution process in India, which involves preventive and settlement machinery like works committees, conciliation, arbitration, and labour courts/tribunals. Recent amendments to labour laws aim to increase coverage of workers, enhance dispute resolution mechanisms, and streamline the establishment of employment regulations.
The document provides an overview of India's labor laws and industrial relations system. It discusses key labor laws covering areas like industrial relations, wages, working conditions, and social security. It also summarizes amendments made to certain laws. The industrial disputes resolution process involves preventive and settlement machinery, including conciliation officers, boards of conciliation, labor courts, and tribunals. The Industrial Disputes Act of 1947 governs industrial relations and disputes, establishing procedures for strikes, lockouts, and dispute resolution.
Similar to The Taylor Law (particularly the Triborough Amendment provision) expires on July 1st. What should Gov. Cuomo do? (20)
“The prosperity the United States enjoys today is due in no small part to investments the nation has made in research and development at universities, corporations, and national laboratories over the last 50 years.”
"Our $559,667 sample also included four coaching-related payment requests, totaling $12,530, for training and meeting expenses. We found that three of the four sampled coaching-related payments, totaling $4,135, were not adequately supported. None of these three payment requests contained copies of the bills for which NYCLA requested reimbursement, such as an invoice from the venue in which a meeting was held."
This audit report summarizes the findings of a follow-up audit to evaluate whether the New York City Department of Education (DOE) implemented recommendations from a prior 2014 audit related to inventory controls over computer hardware. The follow-up audit found that DOE did not improve its inventory controls and that its decentralized inventory records remained inaccurate and incomplete. Specifically, DOE could not account for 4,993 out of 14,329 pieces of computer hardware inspected at 9 sampled sites. The audit makes 19 recommendations for DOE to implement a centralized inventory system, conduct regular monitoring of site inventory records, determine locations of unaccounted hardware, and provide sites with training and resources to improve controls. In its response, DOE did not acknowledge the
"From 2014 through fiscal 2017, for the first time on
record, New York City’s pension contributions exceeded
actual and projected (mostly bond-financed) capital
expenditures. In other words, the city has been spending
more to meet its pension obligations than to build
and renovate bridges, parks, schools, and other public
assets. In fiscal 2018, roughly 57% of contributions will
be needed simply to continue paying down what the
city still owes its pension systems, in order to continue
paying benefits promised to retirees. The rest will
cover the “normal” cost of added benefits earned by
city employees. In other words, if the pension systems
had been fully funded in the past, the city would have
saved more than $5 billion."
American Competitiveness Initiative:Leading the World in Innovation aci06-b...Luis Taveras EMBA, MS
The document summarizes the American Competitiveness Initiative announced by President George W. Bush in 2006. The initiative commits $5.9 billion in 2007 and $137 billion over 10 years to strengthen the United States' position as a global leader in science and technology through increased investment in research and development, education reforms, and workforce training programs. Specifically, it aims to double funding for physical science and engineering research at agencies like the National Science Foundation and Department of Energy, improve K-12 math and science education, and provide training for 800,000 workers annually. The goal is to sustain American innovation, productivity, and economic competitiveness in the face of increasing challenges from abroad.
"Council Speaker Melissa Mark-Viverito, a Manhattan Democrat, and Council woman Julissa Ferreras-Copeland, a Queens Democrat who is chairwoman of the council’s Committee on Finance, praised the administration’s efforts to find cost-saving measures but said they remain concerned about rising shelter and pension costs."
"As consumers, Latinos wield more than $1.3 trillion in buying power, and the number of affluent Hispanic households is growing much faster than for the overall population: In 2015, there were approximately 370,000 US Latino households with incomes over $200,000, an increase of 187 percent since 2005."
" The Success Academy Board of Trustees failed to adequately monitor aspects of the finance affairs of SA and did not consistently follow the procedures for operation required by its bylaws"
This document provides information about a school advisory service firm called Optimization with an Impact (OpIm). It offers three levels of financial advisory services to help schools optimize their budgets and purchasing. The basic service focuses on budget management and purchasing optimization for $25,000. Additional services include budget management optimization for $20,000 and purchasing optimization for $15,000. The goal is to improve instruction, the school environment, and local community through efficient use of school financial resources.
“OpIm relieves instructional leaders of non-instructional tasks so they can focus on student achievement and professional development of the teaching staff.”
New York State depends on Wall Street tax revenues even more than New York City, because the State relies more heavily on
personal and business taxes and does not levy a property tax as the City does.
This document lists 8 references used in another work. The references are books published between 2012 and 2015 that discuss topics such as the relationship between the public and private sectors, the impact of technology on jobs, issues with the sharing economy and capitalism, tax policy, corruption, and national security.
"You would be surprised that in some schools, the restriction appears to be implicitly understood, since they neither have a line for temporarily restricted funds on their balance sheet nor the statement below in their respective financial statement notes".
The Educational Impact of Broadband Sudsidies for Schools Under ERateLuis Taveras EMBA, MS
"The “universal service fund” pays for E-Rate with a 17.9 percent tax on long distance telecommunications. The term may sound odd; “long distance” is an artifact of the past for most Americans. However, international calls over plain old telephone network are still made, mostly by Latin American migrants living in the U.S. The telecommunications levy hits them particularly hard. More affluent households, on the other hand, use Facetime, Skype and other apps that avoid the tax."
http://www.politico.com/agenda/story/2016/08/stop-spending-money-connecting-schools-to-the-internet-000191
A San Francisco tech worker wrote an open letter complaining about the city's homeless population. He referred to them as "riff-raff" and said their "pain, struggle and despair" made commuting unpleasant for "wealthy" residents. The letter sparked backlash for its lack of sympathy. Homeless individuals interviewed expressed frustration with wealthy tech workers who do not care about others and want to "grab anything they can get." While the tech worker apologized for his word choice, he faced criticism for failing to acknowledge the daily challenges of homelessness.
Even among tech companies, Apple's rates are low. And while the company has remade industries, ignited economic growth and delighted customers, it has also devised corporate strategies that take advantage of gaps in the tax code, according to former executives who helped create those strategies.
Gleevec, a drug that treats a rare form of leukemia, was approved in 2001 with a list price of $26,400 per year. Since then, its price has steadily increased, reaching over $120,000 per year currently. While the drug has competition now, its price increases were incremental at first and accelerated even before competitors entered the market. The price hikes have helped make Gleevec a top revenue drug for its manufacturer, Novartis, even though it was initially not expected to be a major moneymaker due to the small patient population. However, critics argue there is a lack of meaningful competition in the drug market that would normally drive prices down.
"Nationwide, charter schools reported an average graduation rate of 70 percent. Hawaii, Arizona, Indiana, Ohio and California have the highest percentages of low-graduation-rate charter high schools."
Examining the stories of successful startup businesses finds each co-founder often brings something special to the table that allowed the company both to get off the ground and then thrive.
1. Elemental Economics - Introduction to mining.pdfNeal Brewster
After this first you should: Understand the nature of mining; have an awareness of the industry’s boundaries, corporate structure and size; appreciation the complex motivations and objectives of the industries’ various participants; know how mineral reserves are defined and estimated, and how they evolve over time.
STREETONOMICS: Exploring the Uncharted Territories of Informal Markets throug...sameer shah
Delve into the world of STREETONOMICS, where a team of 7 enthusiasts embarks on a journey to understand unorganized markets. By engaging with a coffee street vendor and crafting questionnaires, this project uncovers valuable insights into consumer behavior and market dynamics in informal settings."
Vicinity Jobs’ data includes more than three million 2023 OJPs and thousands of skills. Most skills appear in less than 0.02% of job postings, so most postings rely on a small subset of commonly used terms, like teamwork.
Laura Adkins-Hackett, Economist, LMIC, and Sukriti Trehan, Data Scientist, LMIC, presented their research exploring trends in the skills listed in OJPs to develop a deeper understanding of in-demand skills. This research project uses pointwise mutual information and other methods to extract more information about common skills from the relationships between skills, occupations and regions.
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OJP data from firms like Vicinity Jobs have emerged as a complement to traditional sources of labour demand data, such as the Job Vacancy and Wages Survey (JVWS). Ibrahim Abuallail, PhD Candidate, University of Ottawa, presented research relating to bias in OJPs and a proposed approach to effectively adjust OJP data to complement existing official data (such as from the JVWS) and improve the measurement of labour demand.
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The Rise of Generative AI in Finance: Reshaping the Industry with Synthetic DataChampak Jhagmag
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The Taylor Law (particularly the Triborough Amendment provision) expires on July 1st. What should Gov. Cuomo do?
1. 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
2. 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.
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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
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4. s t r o o c k & s t r o o c k & l a v a n l l p
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
5. s t r o o c k & s t r o o c k & l a v a n l l p
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
6. s t r o o c k & s t r o o c k & l a v a n l l p
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
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7. s t r o o c k & s t r o o c k & l a v a n l l p
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. s t r o o c k & s t r o o c k & l a v a n l l p
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.
9. 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.
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
10. s t r o o c k & s t r o o c k & l a v a n l l p
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
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11. s t r o o c k & s t r o o c k & l a v a n l l p
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
12. s t r o o c k & s t r o o c k & l a v a n l l p
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
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“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
14. s t r o o c k & s t r o o c k & l a v a n l l p
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.
For More Information
Alan M. Klinger
212.806.5818
aklinger@stroock.com
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. s t r o o c k & s t r o o c k & l a v a n l l p
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.
16. 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.
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
17. s t r o o c k & s t r o o c k & l a v a n l l p
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
18. s t r o o c k & s t r o o c k & l a v a n l l p
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. s t r o o c k & s t r o o c k & l a v a n l l p
19
For More Information
Alan M. Klinger
212.806.5818
aklinger@stroock.com
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.
20. 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.
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
21. s t r o o c k & s t r o o c k & l a v a n l l p
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
22. s t r o o c k & s t r o o c k & l a v a n l l p
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.
For More Information
Alan M. Klinger
212.806.5818
aklinger@stroock.com
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. s t r o o c k & s t r o o c k & l a v a n l l p
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.
24. 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.
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
25. s t r o o c k & s t r o o c k & l a v a n l l p
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
26. s t r o o c k & s t r o o c k & l a v a n l l p
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
27. s t r o o c k & s t r o o c k & l a v a n l l p
“resulting from a slowdown in the operation of 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
28. s t r o o c k & s t r o o c k & l a v a n l l p
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