Category Archives: Labor Law

Allowing Employers to Make Tangible Employment Decisions Based on an Employee’s Use of Tobacco

By Cameron Betterley, Albany Government Law Review

I. A Widespread Problem

            The devastating health effects of tobacco use are well documented and widely known. Tobacco use is the number one cause of preventable death in the United States,[1] resulting in 480,000 deaths annually, or approximately one of every five deaths each year.[2]  Twenty-five thousand of those deaths occur in the State of New York.[3]  Indeed, “more deaths are caused each year by tobacco use than by all deaths from [h]uman immunodeficiency virus (HIV), [i]llegal drug use, [a]lcohol use, [m]otor vehicle injuries, [f]irearm-related incidents.”[4]  The adverse health effects are not limited to smokers, as exposure to secondhand smoke causes approximately 42,000 deaths per year in the United States[5]—2,500 of those who die are New Yorkers.[6]  Moreover, while extraordinary progress has been made in the last fifty year—“reductions in smoking prevalence avoided an estimated 3 million deaths between 1964 and 2000”—efforts have been less successful with the poor and the less educated.[7]  In 2006, for example, 30% of the least educated were smokers, while only 9% of the most educated were.[8]

II. No Right to Smoke

            Federal law does not protect tobacco users or entitle them to equal protection in all aspects of employment, including hiring, firing, and promotions.  The Equal Employment Opportunity Commission, for example, does not recognize tobacco users as a protected class.[9]  However, twenty-nine states and the District of Columbia currently offer employment protections to tobacco users[10] through laws “that expressly prohibit employers from taking adverse employment actions on an employee’s off-duty legal conduct such as smoking[.]”[11]

            New York, which is among these states, actually goes further, prohibiting an employer from firing or from refusing to hire or employ an employee due to his or her legal use of any consumable products outside of work.  This article argues that New York law should be amended to allow employers in New York to fire, or to refuse to hire, employees or potential employees who smoke or otherwise consume tobacco.

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Filed under Employment Law, Health Law, Labor Law, Uncategorized

Moratorium on Progress: How New York’s “Moratorium” Statute Has Helped Halt Public Sector Teacher Pension Reform

By Ed Delauter, Albany Government Law Review

We need a government that performs better and costs less . . . . [this] means enacting mandate relief.  By next year, pension costs for schools and state and local governments will have increased one hundred percent since 2009.  We need to reform the pension system and create a Tier VI.  The joint Legislature and Executive Mandate relief Council we created last year will begin its work this month.  I will request that Council hold public hearings.  We need a robust discussion on the pros and cons of the mandates.[1]

Amidst the backdrop of a national recession and record federal and state budget deficits across the nation—including New York[2]—Governor Cuomo stood before the crowd gathered at Empire State Plaza on January 4, 2012 and delivered the 2012 State of the State address.[3]  The Governor emphasized the need to reduce the amount of retiree benefits received by public workers, specifically public pensions.[4]  To achieve this reduction the Governor announced his plans to include a Tier VI pension plan into his budget proposal.[5]  The proposal for a Tier VI pension system was unsurprising considering the Governor’s efforts to get the legislature to pass the Tier VI pension system the previous year as a stand-alone bill,[6] and the skyrocketing cost of retiree benefits in conjunction with a tail spinning economy.[7]

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Filed under Civil Service Law, Government Reform, Labor Law, Municipal Law, Public Budgets, Retirement Income

Purpose for Taylor Law’s Strike Provision: Redefining “Strike” in New York Public Sector and Employment Law

By Joanna Pericone, Albany Government Law Review

Introduction  

In 1977 a fire damaged the building of the New York State Unemployment Insurance Department.[1]  The employees were moved to a temporary building that posed several dangerous and uncomfortable working conditions.[2]  The building was essentially unheated, electrical cords blew fuses and posed a walking hazard because they were strewn across the floor.[3]  One of the two toilets in the building was backed up and there were only two exits in the building, one of which was blocked and the other was hard to open.[4]  After the employees took their work and reported to another temporary building, their supervisor ordered them to go back to the deplorable building, but the employees refused to return.[5]  The New York Court of Appeals held that the workers had engaged in an unlawful strike, in violation of New York’s Civil Service Law, and that they were subsequently liable for sanctions imposed by their employer.[6]  Although the conditions of the workplace created a “fire trap” and the strike was prompted out of concerns for safety, the Court found this to be irrelevant; under New York’s Public Employee’s Fair Employment Act, commonly known as the Taylor Law, the reason for a public employee participating in any kind of a work stoppage is not pertinent when determining whether an unlawful strike has occurred. [7]

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Filed under Civil Service Law, Employment Law, Labor Law, Municipal Law