Cities Must Bargain Over Termination of Injured Workers: New York High Court

New York labor law requires a municipality to negotiate when terminating employees who are not at work for over a year because of an on-the-job injury, the New York Court of Appeals has ruled.

The state’s high court ruling reverses a lower court opinion that favored the city of Long Beach, which unsuccessfully argued that section 71 of the labor law exempts the process of terminating civil service employees who are out on long-term disability from the state’s mandatory bargaining procedure

The high court found that the state’s presumption in favor of bargaining may be overcome only in “special circumstances” where there is “plain” and “clear” legislative intent to remove the issue from mandatory bargaining.

The court acknowledged that the legislature enacted section 71 to address prolonged employee absences and “strike a balance” between the state’s interest in an efficient civil service and the interest of the civil servant in continued employment in the event of a disability.

However, the court said its review of section 71, its language and legislative history revealed that “there is no ‘plain’ and ‘clear’ evidence” that the Legislature intended the procedures for terminating employees covered by the statute be foreclosed from mandatory bargaining. The court added that Long Beach presented no other statute or evidence of a legislative intent to limit collective bargaining.

The Taylor Law requires public employers to collectively bargain over public employees’ “terms and conditions” of employment. Section 71 entitles public employees disabled by an occupational injury to a one-year leave of absence, while also providing them with a means for later reinstatement if they are terminated for being absent longer than a year.

In this case, Jay Gusler, a professional firefighter for the city of Long Beach and a member of the Long Beach Professional Firefighters Association, sustained injuries in the line of duty in November 2014, which were later determined to be compensable under the workers’ compensation law. In November 2015, the fire commissioner sent Gusler a letter notifying him that the city was evaluating whether to terminate Gusler’s employment, claiming that section 71 would no longer prohibit the city from terminating him after his absence from work for more than a year due to his injury.

According to the fire chief, if Gusler disputed his potential termination, the city would hold a meeting at which he would have the opportunity to be heard, but if he failed to attend the meeting then the Fire Commissioner would determine that Gusler was not contesting his termination and would recommend his discharge.

The firefighters’ union demanded that the city negotiate the procedures for terminations covered by section 71’s protections. After the city refused, the union filed an improper practice charge with the Public Employment Relations Board (PERB). The PERB affirmed an administrative law judge’s decision that the city had an obligation to engage in collective bargaining prior to imposing procedures for terminating an employee covered by section 71, finding no evidence of a legislative intent to exempt employers from the state’s “strong and sweeping policy” to support employer-employee negotiations.

Deferring to PERB’s interpretation of section 71, a state Supreme Court dismissed the city’s petition seeking to annul PERB’s decision. But an Appellate Division court reversed and, among other things, annulled PERB’s determination. The appellate court held that it need not defer to PERB’s interpretation of section 71 and that the city overcame the presumption in favor of mandatory bargaining.

The Court of Appeals has now reversed that appellate ruling.