New York Curveballs. David Cirillo, Esq. Kevin Harren, Esq. Dominic D Imperio, Esq. Capital Region BOCES Jefferson- Lewis BOCES

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1 New York Curveballs David Cirillo, Esq. Kevin Harren, Esq. Dominic D Imperio, Esq. West Genesee CSD Capital Region BOCES Jefferson- Lewis BOCES New York State MASLA Saratoga Springs July 15-18, 2018

2 Minimum Wage Upcoming Minimum Wage Increases Labor Law, Article 19 The Minimum Wage rates are scheduled to increase each year on 12/31 until they reach $15.00 per hour. Employers must post a Minimum Wage Information poster in their establishments. Location 12/31/16 12/31/17 12/31/18 12/31/19 12/31/ * NYC - Large Employers (of 11 or more) $11.00 $13.00 $15.00 NYC - Small Employers (10 or less) $10.50 $12.00 $13.50 $15.00 Long Island & Westchester $10.00 $11.00 $12.00 $13.00 $14.00 $15.00 Remainder of New York State $9.70 $10.40 $11.10 $11.80 $12.50 * * Annual increases for the rest of the state will continue until the rate reaches $15 minimum wage (and $10 tipped wage). Starting 2021, the annual increases will be published by the Commissioner of Labor on or before October 1. They will be based on percentage increases determined by the Director of the Division of Budget, based on economic indices, including the Consumer Price Index.

3 Here's the Problem: NEGOTIATED AGREEMENT: 1/1/14 12/31/19 HOURLY WAGES ($.75 Annual Step Increases; 2% Annual Raises) Step 2014 $8.00 m.w. $8.75 m.w. $9.00 m.w. $9.70 m.w. $10.40 m.w What Happens in Subsequent Years? HOURLY WAGES ($.75 Annual Step Increases; 2% Annual Raises) 2019 $11.10 m.w. Step 2014 $8.00 m.w $8.75 m.w $9.00 m.w $9.70 m.w $10.40 m.w $11.10 m.w

4 Step 2014 $8.00 m.w $8.75 m.w $9.00 m.w $9.70 m.w $10.40 m.w $11.10 m.w In 2014, employee on top step was making $3.75/hr. more than a newly hired employee (47% spread) By 2019, employee on top step will be making $1.84/hr. more than a newly hired employee (17% spread) The negotiations for a successor agreement will likely not be pleasant: Union: The historical spread should be reinstated - everyone gets similar raises Management: We ve only got 2% - with higher minimum wages, the top must sacrifice to give more to the bottom What will control the outcome? Likely the labor market in the community schools need to staff their positions

5 Reasonable Assurance for Substitute Teachers over Vacation Periods Unemployment Insurance Law (Labor Law 590) (10) Benefits based on professional employment with educational institutions. If a claimant was employed in an instructional,... capacity by an institution of education..., the following shall apply to any week commencing during the period between two successive academic years or terms, provided... there is a reasonable assurance that the claimant will perform, services in such capacity for any such institution... for both of such academic years or such terms, and to any week commencing during an established and customary vacation period or holiday recess, not between such academic terms or years, provided the claimant performed services for such institution immediately before such vacation period or holiday recess and there is a reasonable assurance that the claimant will perform any services... in the period immediately following such vacation period or holiday recess:

6 Papapietro v. Rochester City School District, 156 A.D.3d 1048 (3 rd Dept., 2017): The Unemployment Insurance Appeal Board has long held that an employer need not give any notice to an employee regarding employment following a recess or a vacation.... we find no reason to conclude, as the Board apparently did, that the Legislature intended the second use of the word assurance in Labor Law 590 to be superfluous.

7 OK, so substitute teachers need to be provided with reasonable assurance concerning their employment after school recess periods. But, what must that notice look like? Q: What constitutes reasonable assurance if I am a per diem employee? A: You have reasonable assurance if: You receive written or verbal notification that you will be placed on a substitute list That list will be used for placing substitutes There is a reasonable expectation that sub positions will exist You can expect to earn at least 90% of the prior term's remuneration (including wages and benefits)

8 Unanswered Question: Must individual reasonable assurance letters be sent for each school break, or would this once-a-year notice work?: Thank you for your service as a per diem substitute teacher in the Central School District this past year. Please be assured that your name will remain on our list of per diem substitute teachers for the upcoming school year, and that this list will be used to place substitute teachers whenever required. We reasonably expect that substitute teachers will be needed next school year, and that you can expect to earn at least 90% of the wages and benefits you earned this past school term. This assurance extends for the entirety of the school year, including periods immediately following any scheduled school recess periods or vacations.

9 Cancer Screening Leave L. 2017, c. 465, Effective March 18, b. Excused leave to undertake a screening for breast cancer 1. Every public officer, employee of this state, employee of any county, employee of any community college, employee of any public authority, employee of any public benefit corporation, employee of any board of cooperative educational services (BOCES), employee of any vocational education and extension board, or a school district enumerated in section one of chapter five hundred sixty-six of the laws of nineteen hundred sixty-seven, employee of any municipality, employee of any school district or any employee of a participating employer in the New York state and local employees retirement system or any employee of a participating employer in the New York state teachers retirement system shall be entitled to absent himself or herself and shall be deemed to have a paid leave of absence from his or her duties or service as such public officer or employee of this state, employee of any county, employee of any community college, employee of any public authority, employee of any public benefit corporation, employee of any board of cooperative educational services (BOCES), employee of any vocational education and extension board, or a school district enumerated in section one of chapter five hundred sixty-six of the laws of nineteen hundred sixtyseven, employee of any municipality, employee of any school district, or any employee of a participating employer in the New York state and local employees retirement system or any employee of a participating employer in the New York state teachers retirement system for a sufficient period of time, not to exceed four hours on an annual basis, to undertake a screening for breast cancer.

10 2. Section 159 c of the civil service law is REPEALED. [ 159-c provided for leave specifically for prostate cancer screening] 2. The entire period of the leave of absence granted pursuant to this section shall be excused leave and shall not be charged against any other leave such public officer, employee of this state, employee of any county, employee of any community college, employee of any public authority, employee of any public benefit corporation, employee of any board of cooperative educational services (BOCES), employee of any vocational education and extension board, or a school district enumerated in section one of chapter five hundred sixty-six of the laws of nineteen hundred sixty-seven, employee of any municipality, employee of any school district or any employee of a participating employer in the New York state and local employees retirement system or any employee of a participating employer in the New York state teachers retirement system is otherwise entitled to.

11 21 Misc.3d 195 Supreme Court, Saratoga County, New York. In the Matter of the Application of Katherine MORAN, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. CITY OF SARATOGA SPRINGS, John Francke, as Commissioner of Accounts of the City of Saratoga Springs, Ken Ivins, as Commissioner of Finance of the City of Saratoga Springs, and Scott Johnson, as Mayor of the City of Saratoga Springs, Respondents. July 24, Synopsis Background: City employee commenced Article 78 hearing seeking review of determination by city that employee was not entitled to be paid for leave taken for breast cancer screening under state law. Holding: The Supreme Court, Saratoga County, Thomas D. Nolan, J., held that city s denial of one hour paid leave of absence to employee to undergo medical screening test to detect breast cancer was arbitrary and capricious.