New York Law Review

Tag: Provisional Employee

  • City of Long Beach v. Civil Service Employees Assn., 8 N.Y.3d 465 (2007): Arbitrability of Collective Bargaining Agreements and Provisional Employee Tenure

    8 N.Y.3d 465 (2007)

    A collective bargaining agreement (CBA) provision granting tenure rights to provisional civil service employees beyond the statutory time limit is unenforceable as against public policy because it violates the merit and fitness requirements of the New York State Constitution and the Civil Service Law.

    Summary

    The City of Long Beach sought to stay arbitration demanded by the Civil Service Employees Association (CSEA) on behalf of terminated provisional employees, arguing that the CBA’s ‘tenure’ provisions for these employees violated public policy. The New York Court of Appeals held that the CBA provisions, which granted tenure-like rights to provisional employees after one year of service, were unenforceable because they conflicted with the Civil Service Law’s merit-based appointment system. Allowing such provisions would undermine the constitutional mandate for appointments based on merit and fitness, ascertained through competitive examinations.

    Facts

    The City of Long Beach, following a critical report from the New York State Civil Service Commission regarding its provisional appointments, terminated several provisional employees who had been serving beyond the statutorily prescribed time. The CSEA, representing these employees, filed grievances, arguing that under the CBA, these employees had acquired ‘tenure’ and were entitled to be rehired. The CBA stated that employees with one year of service were deemed tenured and protected from separation, except in specific circumstances. It further stipulated that displaced provisional employees should be transferred to other open positions for which they qualified.

    Procedural History

    The City petitioned to stay arbitration. Supreme Court granted the City’s petition, holding that the CBA provisions were unenforceable due to the employees’ provisional status. The Appellate Division affirmed. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether a provision in a collective bargaining agreement that grants tenure rights to provisional civil service employees after one year of service is arbitrable when such a provision conflicts with the merit and fitness requirements of the New York State Constitution and the Civil Service Law.

    Holding

    No, because granting the relief sought by the provisional employees under the CBA’s ‘tenure’ provisions would violate the Civil Service Law and public policy by circumventing the constitutional mandate for merit-based appointments.

    Court’s Reasoning

    The Court of Appeals emphasized that while public policy generally favors arbitration of public sector labor disputes, arbitration is not permissible when it violates a statute, decisional law, or public policy. The court found that the CBA’s tenure provisions for provisional employees directly contravened Article V, Section 6 of the New York Constitution, which mandates that civil service appointments be based on merit and fitness, as determined by competitive examination where practicable. The Civil Service Law, implementing this constitutional provision, allows provisional appointments only when no eligible list exists and limits such appointments to a maximum of nine months. The Court stated, “The statutory scheme contained in section 65 by its very terms prohibits any right of tenure to provisional employees. Properly construed, the Civil Service Law renders the provisions of the CBA upon which CSEA relies meaningless.” Granting tenure rights to provisional employees who have served beyond the statutory limit would undermine the merit-based system and perpetuate the misuse of provisional appointments. The Court further reasoned that allowing the City to agree to provide superior rights to provisional employees holding positions beyond the statutory time period would be against public policy. Chief Judge Kaye dissented in part, arguing that the portion of the CBA that required displaced provisional workers to be transferred to an open position was severable and arbitrable. The majority rejected this argument, holding that no relief may be granted because it is contrary to statute and decisional law.

  • Matter of Henly v. D’Apice, 68 N.Y.2d 813 (1986): Provisional Employee’s Right to Reinstatement

    Matter of Henly v. D’Apice, 68 N.Y.2d 813 (1986)

    Provisional employees in New York generally lack a right to reinstatement or back pay, even if their termination is in bad faith, unless specific statutory or constitutional violations are present.

    Summary

    This case addresses whether a provisional employee of the State Division of Probation is entitled to reinstatement and back pay after a jury found he was discharged in bad faith. The New York Court of Appeals held that provisional employees, appointed under Civil Service Law § 65, generally do not have a right to reinstatement or back pay upon termination, regardless of the employer’s motive. The court emphasized that provisional appointments are temporary and do not confer the same rights as permanent employment, unless a constitutional or statutory violation occurred during the termination.

    Facts

    Henly was employed as a provisional employee with the State Division of Probation. He was subsequently terminated from his position. Henly challenged his termination, alleging it was done in bad faith. A jury determined that Henly’s discharge was indeed in bad faith.

    Procedural History

    Henly initiated an Article 78 proceeding seeking reinstatement to his position and back pay. The Appellate Division ruled that Henly was not entitled to reinstatement or back pay, despite the jury’s finding of bad faith discharge. The New York Court of Appeals affirmed the Appellate Division’s decision.

    Issue(s)

    Whether a provisional employee, terminated in bad faith, is entitled to reinstatement and back pay.

    Holding

    No, because appointments made under Civil Service Law § 65 are provisional and do not grant an expectation of tenure or rights typically associated with permanent employment. Provisional employees can be terminated at any time without charges, reasons, or a hearing, unless the termination violates a constitutional provision or statute.

    Court’s Reasoning

    The Court of Appeals relied on the nature of provisional appointments under Civil Service Law § 65. The court stated, “Appointments made pursuant to Civil Service Law § 65 are provisional in nature; provisional employees have no expectation of tenure and rights attendant thereto except under the limited circumstances specified in Civil Service Law § 65 (4)… and therefore they may be terminated at any time without charges preferred, a statement of reasons given or a hearing held.” The court distinguished provisional employees from permanent employees, emphasizing the lack of job security for provisional appointees. The court acknowledged that other remedies may be available if the termination violates a constitutional provision or statute but found those remedies (reinstatement and back pay) were not applicable in this case. The court cited previous cases such as Matter of Becker v New York State Civ. Serv. Commn., Matter of Haynes v County of Chautauqua, Matter of Riggi v Blessing, Matter of Benon v LaGuardia, Ranus v Blum, and Matter of Brathwaite v Manhattan Children’s Psychiatric Center to support its conclusion that provisional employees lack the same protections as permanent employees.