Disciplinary ActionOn September 7, 2017, New York Governor Andrew Cuomo signed an amendment to Civil Service Law Section 75 extending notice and hearing rights to “Labor Class” employees after five years of continuous service. Previously, Labor Class employees (who were not veterans or exempt volunteer firefighters) were not afforded the right to written disciplinary charges and a hearing when facing charges that could impose a reprimand, fine, suspension without pay, demotion, or termination. After the recent amendment, all Labor Class employees with five years of continuous service will receive the protections of Civil Service Law Section 75, entitling them to a disciplinary notice and hearing. These protections are effective as of September 7, 2018, and Labor Class employees should familiarize themselves with their new rights; a brief outline is provided below.

Who Is Covered Under Civil Service Law Section 75?

Prior to the September 7, 2018, amendment, Civil Service Law Section 75 covered only the following public employees: Competitive Class Employees, consisting of positions for which competitive exams are held, lists established, and appointments made from certifications of the lists; Non-competitive Class employees with five years of continuous service, consisting of positions for which the appropriate civil service agency determines that it is not practicable to fill by competitive examination; qualified veterans and exempt volunteer firemen; New York City homemaker or home aide with three years of service; and, police detectives with three years of service.

Now, the recent September 7, 2018, amendment to Section 75 expands coverage to Labor Class employees with five years of continuous service. Labor Class employees consist of unskilled laborers not falling within any of the above categories. Labor Class employees previously did not have any protections under Section 75.

Section 75 protections do not extend to temporary or provisional employees, regardless of their classification.

What Is Civil Service Law Section 75?

Civil Service Law Section 75(1) provides that a covered person “shall not be removed or otherwise subjected to any disciplinary penalty ... except for incompetency or misconduct ...”
Although Section 75 does not specifically define the terms “incompetency” or “misconduct,” arbitration decisions and case law have led to generally accepted definitions as follows:

Incompetence: The inability to perform resulting from a lack of aptitude, a deficiency in knowledge, or a disregard for direction, procedures or methods.

Misconduct: An act or omission of intentional wrongdoing, deliberate violation of law, rule or regulation, improper behavior, or refusal to obey or comply.

What Protections Does Section 75 Afford?

Civil Service Law Section 75 gives covered public employees, as defined above, the right to representation at a disciplinary interrogation, the right to written notice of the charges and an opportunity to respond, and the right to a hearing where the employer must establish “proof by a preponderance of evidence.”

Right to Representation

Under Section 75, a covered public employee, as defined above, is entitled to representation when they appear to be a potential subject of disciplinary action and is to be interrogated in connection with the action. A public employer must notify a covered employee in writing of their right to representation before any questioning. If an employee requests representation, they are allowed a reasonable time to obtain representation. If they decline representation or do not obtain representation in a reasonable amount of time, the employer has the right to proceed with the interrogation.

Written Notice and Opportunity to Respond

A public employer must provide a written notice of disciplinary action, which includes the reasons for discipline, to a covered employee. The employee is then allowed at least eight days to respond to the written notice, however, the notice will usually specify a time frame for a response.

Right to a Hearing
A covered public employee under Section 75 has a right to an evidentiary hearing before any discipline may be imposed. The public employee has a right to counsel, call witnesses, and cross examine. It should be noted, however, that the strict rules of evidence in trial court are not applicable to a Section 75 hearing.

What to do if Your Section 75 Rights are Violated?

This amendment is a major step forward for Labor Class employees receiving the same protections as Non-Competitive and Competitive class employees as defined above. While many Labor Class employees are already protected by their respective Collective Bargaining Agreement, the addition of Civil Service Law Section 75 protections will ensure that an additional avenue for fighting unjust discipline is available for all Labor Class employees with five years of continuous service.

It should be noted, however, that Labor Class employees subject to a collective bargaining agreement may be constrained to resolving disciplinary issues within the framework of their grievance procedure.

As such, Labor Class employees should carefully review their applicable collective bargaining agreement to see if it addresses Section 75 protections

Public employees in the Labor Class should take note of their five-year employment anniversary to be aware of when their Section 75 protection begins. Section 75 has long protected public employees against unfair or unfounded discipline and public employers may not be aware of the recent amendment extending the protections to Labor Class employees. As such, they may impose discipline without following the notice or hearing requirements.

If you are a Labor Class employee with five years of continuous service and you believe that your Section 75 rights may have been violated, or if you need any assistance exercising your rights under Section 75, please contact NY employment attorneys Borrelli & Associates today for a consultation.