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ISAACS DEVASIA CASTRO & WIEN PROTECTS UNION OFFICIALS FROM UNFOUNDED LAWSUITS

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To be a union official is to take on responsibility that is unparalleled in any other profession. A union official is, at least, one part lawyer, one part social worker, one part diplomat, and one part politician. A union official has to understand labor law, collective bargaining, and contract interpretation, make referrals to social service resources, negotiate with powerful corporate titans and government officials and provide counseling to union members on a myriad of subjects and in a wide variety of tense, high stakes situations. A union official needs to balance empathy with toughness and compassion with, often brutal, honesty. The position requires the union official to draw on a wealth of emotional and intellectual resources in which complex subjects such as law and finance must be synthesized with personal experience and hands-on work at the trade, craft, or profession that the official represents. As unions are not-for-profit enterprises and consistently under member pressure to keep dues affordable, union officials often have overwhelming caseloads.  All this, moreover, occurs in a highly politicized atmosphere where outside corporate forces and the media defame the good works performed by union officials with derogatory, oversimplifying references to them as “bosses.”

The reward for all this dedication is far too often that union officials are forced to answer and defend their decisions in lawsuits brought by their own members, often with the backing of law firms financed by right to scab and right to freeload forces. Isaacs Devasia Castro & Wien are experts in defending these lawsuits. 

Recently, a member of a Correction Officers union represented by IDC&W sued after claiming sexual assault by a supervisor. The allegations against the supervisor were horrendous, but the union member and her lawyers set sight not only on the supervisor and the employer but also on the union officials who tried to help her. The union member specifically demanded that union officials complain on her behalf to higher management and speak with the alleged assailant. When the union official honored both requests, the member and her attorney hypocritically claimed that the union officials violated her constitutional rights by doing exactly what she requested. 

On March 4, 2021, the United States District Court recognized the absurdity of these allegations and dismissed the lawsuit against the union officials. The court specifically noted that the union member could not claim a constitutional violation against private citizens and that union officials when acting in the union official capacity are private citizens. This is true, said the court, even if the officials are employed by the government and receiving employment benefits from the government. The court, found “logically inconsistent” the union member’s “central premise” that, by doing exactly what was requested, that is, contacting the assailant and upper management, the union officials engaged in a conspiracy with government officials to violate her constitutional rights. 

IDC&W secured this dismissal, moreover, at the motion to dismiss stage of the litigation. This is of critical importance for union officials because they avoided spending significant time defending this meritless litigation. Securing dismissal early means no time lost due to extensive document production or depositions which can exponentially exacerbate an already overburdened union official. 

IDC&W is pleased to report this successful decision which is now available on Westlaw at 2021 WL 826235

IDC&W Partner Howard Wien represented the union officials in this action. 

The Basics of Line of Duty Job Injuries

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Understanding NY General Municipal Law Section 207-c – Part III

By: Liam L. Castro, Esq.

In Part I of this multi-part series we explained, generally, that New York General Municipal Law Section 207 c provides the payment of full regular salary or wages and for medical treatment to specific groups of law enforcement and municipal employees who are injured or who are taken ill as a result of the performance of their duties.  We also explained that applicants for this benefit must show that there is a direct causal relationship between their job duties and the resulting illness or injury. 

Likewise, Part II explained that if a collective bargaining agreement or the employer’s rules explain a time frame that an employee’s application for NY GEN. MUN. L. ‘ 207 c must be submitted, the employee must comply at the risk of having the application denied.  We also explained that a pre-existing, non-work-related injury does not bar an employee’s application for this benefit as long as the injury he or she shows that the job duties are a direct cause of the current disability.

This Part III explains how you can lose your NY GEN. MUN. L. § 207-c benefits after they have been awarded.  And, there are quite a few of them.

First, we must add that once you have been awarded NY GEN. MUN. L. § 207-c benefits, as the Court of Appeals in Park v. Kapica held that these benefits are considered to be “a property interest giving rise to procedural due process protection, under the Fourteenth Amendment, before those payments are terminated.”  Your right to keep these benefits is like a civil servant’s right to their job; it can’t be taken away without due process.  

Under the statute, one way you can lose NY GEN. MUN. L. § 207-c salary and medical benefits is when either “health authorities” or a “physician” certifies that you are “recovered and is physically able to perform his regular duties”.  Usually the “health authority” or “physician” is a county or town police surgeon.  

A second way for you to lose your NY GEN. MUN. L. § 207-c salary or medical benefits is if you “refuse to accept medical treatment or hospital care” or “refuse to permit” your employer to inspect your current condition.  In fact, if you refuse to treat on your injury or permit your employer to inspect your condition, the statute states that you will be considered to have waived your right to the benefits.  

A  third way for you to lose your NY GEN. MUN. L. § 207-c salary or medical benefits is if you refuse to return to light duty if such an assignment is available and offered to you.  In fact, if an employee refuses to return to work for light duty and fails to provide medical documentation that he or she is unable to do so, the section 207-c salary benefits may be discontinued without a hearing.  Thus, it is critical for you to provide documentation of your own doctor’s opinion. 

You should note that the statute requires that your light duty be consistent with your “status as a policeman”.  For example, a county correction officer cannot be ordered to work in the jail’s kitchen as a county cook. 

In many collective bargaining agreements, you will find how you can dispute when the employer’s doctor believes that you have recovered and are able to perform your regular duties, or whether you failed to treat your injury or permit the employer to inspect your condition, or whether you refused to return to light duty.  Usually, the forum for these disputes is a hearing before either a hearing examiner or an independent arbitrator, or through an examination by an independent medical examiner.  If your jurisdiction does not have a set negotiated process, the Court of Appeals in Park v. Kapica held that your employer is “free to fashion a hearing remedy so long as its procedure afforded [the employee] due process.”

The fourth way for you to lose your NY GEN. MUN. L. § 207-c benefits is if you are awarded a disability pension.  For example, if you’re awarded a one-third or three-quarters disability pension, your right to section 207-c benefits ends.    

An employer’s decision to cease an employee’s line of duty benefits should always be taken seriously by the employee.  The process can be complicated and requires a timely response, and you should consult an attorney and illicit your union’s assistance immediately.   

Liam L. Castro, Esq. is an Associate in the Labor & Employment division at Isaacs, Devasia, Castro & Wien LLP.  For more information on this topic you can contact him at 917.551.1333 or at lcastro@idcwlaw.com.