We at IDC&W Law understand the  importance of time off for our hard working union clients. It is particularly critical for first responders.  Recently, in response to the New York City COVID-19 vaccine mandate, the City issued a policy to penalize employees who called out sick on ordered overtime with a loss of ability to exchange work shifts with other employees. This rule was so broadly and poorly written, the employee could have been penalized for being quarantined due to exposure to or contracting COVID-19.  While the matter is subject to grievance arbitration, we also fought to ensure that union members would not be harmed while the arbitration is pending. Under a unique provision of New York State law, we  sought court intervention to prevent the City  from implementing the policy change prior to the arbitration hearing.

Despite the Courts regularly denying injunction requests that are related to COVID-19 policies, we were able to successfully  obtain a temporary restraining order in aid of arbitration. The grievance is now pending arbitration and the injunction maintaining the status quo is presently  in effect.

The union was represented by IDC&W Law Partner Liam L. Castro.

The pandemic showed how important essential workers are. The truth is, they always were. They fought for us when we needed them most, working long hours risking their and their family’s health. That is particularly why their time off is important and sacred. 

In May 2021 the City eliminated the use of compensatory time off for its Fire Alarm Dispatchers; it was previously two slots per shift per borough. IDC&W jumped into action, the next day filing an action in Court seeking a restraining order. Within days, without need for a court order, based upon the strength and persuasiveness of our arguments, the City, and IDC&W and our client resolved the matter ensuring that the Fire Alarm Dispatchers’ compensatory time off was preserved. This City also agreed to grant all prior requests for compensatory time that were denied.

*PLEASE NOTE OUR NEW FIRM NAME AND ADDRESS BELOW.
Liam L. Castro, Esq.Isaacs Devasia Castro & Wien, LLP80 Broad Street, 5th floor | New York, NY 10004

Tel: 917.551.1300/917.837.7121| e-mail: lcastro@koehler-isaacs.com

We are pleased to announce that Koehler & Isaacs LLP has added three new partners and will now be known as Isaacs Devasia Castro & Wien LLP. At this time, with mixed emotions, we also announce the retirement of Founding Partner, Richard J. Koehler from the firm. 

The new partners are long-time associates Cynthia Devasia, Liam Castro and Howard Wien who have a collective sixty years of litigating, mediating, and negotiating legal issues affecting workers and public and private sector labor unions and employee fringe benefit funds. All three have extensive experience negotiating collective bargaining agreements and conducting hundreds of labor arbitrations litigating disciplinary charges, contract grievance violations and line of duty injury benefits. They also advise our union and employee benefits clients in corporate governance and regulatory compliance matters. In their own way, each has been an indispensable asset to the firm and our clients: 

Our clients have benefited from Ms. Devasia’s extensive federal court practice entailing novel Constitutional claims, civil rights (plaintiff and defense), and employee benefits litigation including ERISA delinquency actions leading to the collection of millions of dollars in plan assets.  Ms. Devasia is also an Adjunct Professor of Law at the Benjamin N. Cardozo School of Law where she has taught doctrinal law and legal writing, research, and lawyering skills. 

Our clients have found Mr. Castro’s representation in state court matters essential to obtaining injunctive relief protecting against excessive work hours and preserving worker’s pay, leave time, and health benefits.  He also has a successful track record in appellate advocacy arguing in three of the four Appellate Divisions and also before the state’s highest court, the Court of Appeals, where he was victorious each time.  

Our clients have thrived under Mr. Wien’s guidance in forming local and national level labor unions, protecting the rights of public sector supervisory workers to organize, running successful union organizing campaigns, and navigating the intricacies of internal union disputes. Mr. Wien is a former Commissioner of the Yonkers Commission of Human Rights and also a trained mediator and experienced arbitrator.  

“Cynthia, Liam, and Howard epitomize the dedication and exemplary service our firm provides.  They are exceptionally talented, have been an integral part of our long-standing success and we look forward to continuing the same high-caliber and innovative legal representation we have provided for over 20 years,” said Founding Partner Steven A. Isaacs. 

The firm was founded under the Koehler & Isaacs moniker in 1999 by Mr. Isaacs and Richard J. Koehler, a longtime labor relations advocate and former Commissioner of the New York City Department of Correction and New York City Police Department Chief of Personnel, as a unique, full service law firm designed to meet the legal needs of working families, their unions and their employee benefit funds.  The firm has represented clients in various public and private sector industries including law enforcement, security, transportation, education and construction. During this time, Mr. Koehler has been our captain, guiding force, and a man widely respected for his service to his clients, the legal profession, his City and Country.  We wish him the very best and thank him for his stewardship and, more importantly, the many years of friendship. 

More information about Isaacs Devasia Castro & Wien LLP can be found at www.idcwlaw.com.

Your Privacy is not Private: Social Media and Employee Discipline

Social Media platforms provide an easy way to engage with “friends” and share your opinions. All social media platforms currently provide “privacy” settings by which you can limit the recipients of your posts to those you have selected as your friends. So, you should feel secure that what you say on social media will not come back to haunt you. WRONG! NOTHING IS TRULY PRIVATE ON SOCIAL MEDIA.

That lack of privacy has direct consequences for union members. YOU CAN AND WILL BE PUNISHED FOR WHAT YOU SAY ON SOCIAL MEDIA. In the private sector, the only question is whether there is some connection between your comments and your job. If you post carelessly, your comments may be perceived as racist or sexist and you may be disciplined for those comments simply by virtue of the fact that all employees in the United States are expected to be able to work with others regardless of race, religion, gender or other legally protected characteristics.  Even outside the scope of bigotry, adverse comments about your employer can lead to discipline as employees are expected to maintain a reasonable degree of loyalty to the employer during their employment. 

In the public sector, employees are protected by the First Amendment but only to a point. Although the First Amendment protects your comments on issues of public concern, comments on social media that make their way to the workplace and cause “disruption” can result in discipline.  This is particularly true when you express your opinions on hot button issues with words of hostility or where your comments are race or gender based. Consider the following, which was the subject of an employee discipline case recently handled by Isaacs, Devasia, Castro & Wien LLP. 

Remember, white people: Your sole purpose during this time is to protect people of color while they’re destroying the city. Obey. Submit.” 

This post, on the employee’s supposedly private social media account resulted in his suspension from employment, the employer’s attempt to terminate his employment, an arbitration hearing where the Arbitrator found termination inappropriate but imposed a six month, multi-level demotion, with corresponding loss of pay, a time-served suspension, and an ultimately unsuccessful appeal by the employer to the courts in an attempt to have the arbitration award thrown out.  

The quoted post was stated in sarcasm. It was a response to a prior post stating that there should be more violence and property destruction in police misconduct protest and that the role of sympathetic white people was to be a “white wall” protecting ethnic minorities while they commit riotous acts. The sarcasm was intended to indicate opposition to both the call for violence and the race based roles in the prior post. 

The comment, however, caused extensive outrage among co-workers, was widely reported in the news media and was the repeated subject of a podcast popular among this employee’s co-workers. Additionally, many of the employee’s subordinates wrote to the employer demanding discipline and stating that they could not work under the employee’s supervision. The comment, finally, was deemed by the arbitrator to reflect the employee’s “racist attitude” and imposed the penalty discussed above. Imagine how different things would have been if the employee has simply stated: “I find your call for violence and your bigotry to be wrong and offensive.”  Clearly, there is nothing outrageous or racist about this comment which would have saved the employee months of anxiety, public humiliation and tens of thousands of dollars. The lesson: Speak your mind, but do so with care. 

The additional lesson is; union representation matters. Had the employee not been represented by a labor union, he would have been fired with no recourse. The First Amendment, here, provided no protection because of the disruption in the workplace and it was only the union collective bargaining agreement and its clause prohibiting termination without just cause that saved this employee. That clause required arbitration which although final and binding on paper was still subject to an appeal by the public employer. Such an appeal, known as an “application to vacate an arbitration award,” meant that the Arbitrator’s decision remained unenforceable for many months after it was issued. Only after Isaacs, Devasia, Castro & Wien LLP secured a victory for the employee and the union, did he return to his original position with the employer. 

It cannot be overstated. Absent a labor union contract, most employees work in an “at-will” environment meaning they can be terminated for any reason, no reason, or even bad reason, so long as the termination isn’t independently illegal under anti-discrimination statutes. Even with civil service protection, the hearing a public employee is entitled to is not before an independent body. The hearing officer is an employee or contractor hired by the public employer and the ultimate decision is made by the public employer. Only arbitration gained through collective bargaining provides for an independent evaluation in disciplinary cases. Again, union representation matters. 

Isaacs, Devasia, Castro & Wien LLP is expert in the intricacies of collective bargaining, arbitration and litigation with respect to arbitration awards and is proud to have achieved these results for the union and it member. 

Howard Wien represented the union in this matter. 

For many years, the New York City Board of Corrections has stood as an obstacle to the safety of the staff in the City’s jails. During the current Mayoral administration, the Board has passed rule after rule making a dangerous job nearly impossible. Correction Department staff have suffered exacerbation in both the number and severity of assaults by inmates directly due to well-intentioned but misguided reforms imposed by the Board. The Board is responsible for establishing “minimum standards” of care for inmates and, consequently, has the ability to draft rules that extensively tie the hands of Correction Officers in their efforts to quell jail violence. 

The Board has repeatedly restricted the use of punitive segregation, which requires isolation of highly assaultive inmates. That restriction directly led to increased jail violence by inmates against not only law enforcement staff but against other inmates and civilian staff creating chaos in the city jail system. During 2019, the Board yet again published proposed rules to further restrict the use of this life-saving law enforcement tool. Isaacs, Devasia, Castro & Wien LLP took the matter to the New York City Board of Collective Bargaining claiming that the imposition of these rules constituted a safety threat to officers and that the failure to bargain with their union beforehand constituted an improper employment practice. 

The City moved to dismiss the case arguing that the Board of Collective Bargaining had no jurisdiction over the Board of Correction.  The Board of Collective Bargaining, however, rejected that argument.  It noted that the fact that the New York City Department of Correction is obligated to comply with the Board of Correction’s rulemaking does not eliminate the Board of Collective Bargaining’s jurisdiction because “it is well established that a public employer has an obligation to bargain over matters within the scope of bargaining even if it is complying with a law, regulation, or directive that it did not promulgate.” As a result, the Board of Collective Bargaining clarified that rules promulgated by the Board of Correction are subject to the same improper practice analysis as any other public employer.  

This clarification means the unions representing the over ten thousand members of the Department of Corrections’ staff can directly challenge Board of Correction rules at the Board of Collective Bargaining. For the uninitiated, the Board of Collective Bargaining is the local, New York City, version of the New York State Public Employment Relations Board or the National Labor Relations Board. As such, it is the only recourse for City employees’ and their unions’ claims of improper employer practices such as failing to bargain in good faith or interference, restraint, coercion or discrimination against employees in the exercise of their rights to form, join and participate in labor unions.  A decision clarifying the Board of Collective Bargaining’s jurisdiction over rule-making bodies such as the Board of Correction is critical victory for public employees and their unions. 

Howard Wien represented the union charging party in this matter.