S T A T E   O F   N E W   Y O R K
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                                  4920

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            February 9, 2011
                               ___________

Introduced by M. of A. ABBATE -- read once and referred to the Committee
  on Governmental Employees

AN ACT to amend the civil service law, in relation to arbitration proce-
  dures for violation of the fair employment act

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1.  Paragraph (e) of subdivision 2 of section 210 of the civil
service law, as amended by chapter 254 of the laws of 1983,  is  amended
to read as follows:
  (e)  Notice.  The  chief executive officer shall forthwith notify each
employee AND THE RECOGNIZED OR CERTIFIED EMPLOYEE ORGANIZATION  that  he
OR  SHE  has  [been] found SUCH A VIOLATION to have BEEN committed [such
violation], the date or dates thereof and of his OR HER right to  object
to  such  determination pursuant to paragraph [(g)] (F) of this subdivi-
sion; he OR SHE shall also notify the chief fiscal officer of the  names
of  all such employees and of the total number of days, or part thereof,
on which it has been determined that such violation occurred. Notice  to
each  employee  AND  THE  RECOGNIZED  OR CERTIFIED EMPLOYEE ORGANIZATION
shall be by personal service or by certified mail to  his  OR  HER  last
address filed by him OR HER with his OR HER employer.
  S  2.  Paragraph  (f)  of  subdivision  2  of section 210 of the civil
service law, as amended by chapter 503 of the laws of  1971  and  relet-
tered  by  chapter  254 of the laws of 1983, is relettered paragraph (g)
and amended to read as follows:
  (g) Payroll deductions. Not earlier than thirty nor later than  ninety
days  following  the  date  of [such] THE determination MADE PURSUANT TO
PARAGRAPH (D) OF THIS SUBDIVISION IN THE CASE OF  AN  EMPLOYEE  WHO  HAS
MADE NO OBJECTION TO SUCH DETERMINATION, OR THE DECISION OF THE ARBITRA-
TOR, WHERE SUCH OBJECTION HAS BEEN MADE, the chief fiscal officer of the
government  involved  shall IMPLEMENT THE DECISION OF THE ARBITRATOR, OR
IN THE CASE OF AN EMPLOYEE WHO HAS MADE NO  OBJECTION  TO  THE  DETERMI-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09081-01-1
              

A. 4920                             2

NATION  MADE  PURSUANT  TO PARAGRAPH (D) OF THIS SUBDIVISION deduct from
the compensation of each such public employee an amount equal  to  twice
his  OR  HER  daily rate of pay for each day or part thereof that it was
determined  that  he  OR SHE had violated this subdivision; such rate of
pay to be computed as of the time of such violation. In IMPLEMENTING THE
DECISION OF THE ARBITRATOR, OR computing such deduction, credit shall be
allowed for amounts already withheld from such  employee's  compensation
on  account  of  his  OR  HER  absence from work or other withholding of
services on such day or days. In computing the aforesaid thirty to nine-
ty day period of time following THE DECISION OF THE ARBITRATOR,  OR  the
determination  of a violation pursuant to [subdivision] PARAGRAPH (d) of
[paragraph two of] this [section] SUBDIVISION IN THE CASE OF AN EMPLOYEE
WHO HAS MADE NO OBJECTION TO SUCH DETERMINATION, and where  the  employ-
ee's  annual  compensation  is  paid over a period of time which is less
than fifty-two weeks, that period of time between the last  day  of  the
last  payroll  period  of  the  employment  term  in which the violation
occurred and the first day of the  first  payroll  period  of  the  next
succeeding employment term shall be disregarded and not counted.
  S  3.  Paragraph  (g)  of  subdivision  2  of section 210 of the civil
service law, as amended by chapter 254 of the laws of  1983,  is  relet-
tered paragraph (f) and amended to read as follows:
  (f)  Objections  [and],  restoration  AND  ARBITRATION.   Any employee
determined to have violated this subdivision may object to such determi-
nation ON THE GROUNDS THAT NO SUCH VIOLATION HAS  OCCURRED  AND,  IF  NO
SUCH  OBJECTION  IS FILED BY THE RECOGNIZED OR CERTIFIED EMPLOYEE ORGAN-
IZATION ON THE GROUNDS THAT THE GOVERNMENT INVOLVED PROVOKED THE CONDUCT
ALLEGEDLY CONSTITUTING SUCH VIOLATION by filing with the chief executive
officer, (within twenty days of the date on which notice was  served  or
mailed  to him OR HER pursuant to paragraph (e) of this subdivision) his
OR HER  sworn  affidavit,  supported  by  available  documentary  proof,
containing a short and plain statement of the facts upon which he OR SHE
relies  to  show  that  such determination was incorrect. Such affidavit
shall be subject to the penalties of perjury.  If  the  chief  executive
officer  shall  determine that the affidavit and supporting proof estab-
lishes that the employee did not violate this  subdivision,  he  OR  SHE
shall sustain the objection. If the chief executive officer shall deter-
mine that the affidavit and supporting proof fails to establish that the
employee  did not violate this subdivision, OR IF THE OBJECTION IS BASED
SOLELY UPON PROVOCATION ON THE PART OF THE GOVERNMENT  INVOLVED,  he  OR
SHE  shall  dismiss  the  objection  and so notify the employee[. If the
chief executive officer shall determine that the affidavit and  support-
ing  proof  raises a question of fact which, if resolved in favor of the
employee, would establish that the employee did not violate this  subdi-
vision,  he shall appoint a hearing officer to determine whether in fact
the employee did violate this subdivision after a hearing at which  such
employee  shall  bear  the burden of proof. If the hearing officer shall
determine that the employee failed to establish that he did not  violate
this  subdivision,  the  chief  executive  officer  shall  so notify the
employee.  If the chief executive officer sustains an objection  or  the
hearing  officer determines on a preponderance of the evidence that such
employee did not violate this subdivision, the chief  executive  officer
shall  forthwith  notify  the  chief  fiscal officer who shall thereupon
cease all further deductions and refund any deductions  previously  made
pursuant  to this subdivision. The determinations provided in this para-
graph shall be reviewable pursuant to article seventy-eight of the civil
practice law and rules] AND THE EMPLOYEE ORGANIZATION  THAT  REPRESENTED

A. 4920                             3

HIM OR HER. WITHIN TWENTY DAYS AFTER RECEIPT OF SUCH NOTIFICATION BY THE
PUBLIC  EMPLOYEE  OR  THE  EMPLOYEE ORGANIZATION WHICHEVER IS LATER, THE
PUBLIC EMPLOYEE, THROUGH HIS OR HER EMPLOYEE ORGANIZATION, WHERE  APPLI-
CABLE, MAY REQUEST THAT A DETERMINATION AS TO WHETHER HE OR SHE VIOLATED
THIS  SUBDIVISION  AND/OR WHETHER SUCH ALLEGED VIOLATION WAS PROVOKED BY
THE GOVERNMENT INVOLVED BE MADE BY AN ARBITRATOR SELECTED,  PURSUANT  TO
THE RULES AND PROCEDURES OF THE AMERICAN ARBITRATION ASSOCIATION, BY THE
GOVERNMENT  INVOLVED  AND  THE  EMPLOYEE  ORGANIZATION  REPRESENTING THE
OBJECTING EMPLOYEES, FROM A LIST SUPPLIED BY  THE  AMERICAN  ARBITRATION
ASSOCIATION  AFTER A HEARING CONDUCTED UNDER THE RULES AND PROCEDURES OF
THE AMERICAN ARBITRATION ASSOCIATION AT WHICH  THE  GOVERNMENT  INVOLVED
SHALL  BEAR  THE BURDEN OF PROOF. ALL OBJECTIONS ARISING OUT OF THE SAME
INCIDENTS CONSTITUTING THE ALLEGED VIOLATIONS  OF  THIS  SECTION  AND/OR
PROVOCATION ON THE PART OF THE GOVERNMENT INVOLVED SHALL BE CONSOLIDATED
FOR  DISPOSITION  AND  DETERMINATION BY ONE ARBITRATOR.  THE COST OF THE
ARBITRATION PROCEEDING AND THE FEE OF THE ARBITRATOR  SHALL  BE  EQUALLY
SHARED  BY  THE  GOVERNMENT  INVOLVED  AND  THE EMPLOYEE OR THE EMPLOYEE
ORGANIZATION REPRESENTING THE OBJECTING EMPLOYEE. WITHIN  FIVE  DAYS  OF
THE  CONCLUSION  OF THE ARBITRATION HEARING THE ARBITRATOR SHALL FORWARD
HIS OR HER REPORT CONSISTING OF HIS OR HER FINDINGS AND  RECOMMENDATIONS
INCLUDING  RECOMMENDATIONS  AS  TO PENALTIES IF WARRANTED TO THE PARTIES
AND TO THE CHIEF FISCAL OFFICER OF THE GOVERNMENT INVOLVED. IF THE ARBI-
TRATOR FINDS THAT THE GOVERNMENT INVOLVED FAILED TO PROVE THE  OBJECTING
EMPLOYEE VIOLATED THIS SUBDIVISION HE OR SHE SHALL SUSTAIN THE OBJECTION
OF  THE  EMPLOYEE.  IF  THE  ARBITRATOR  FINDS BY A PREPONDERANCE OF THE
EVIDENCE THAT THE GOVERNMENT  INVOLVED  PROVED  THE  OBJECTING  EMPLOYEE
VIOLATED  THIS SUBDIVISION AND FURTHER FINDS THAT SUCH VIOLATION WAS NOT
PROVOKED BY THE GOVERNMENT INVOLVED, HE OR SHE SHALL  REQUIRE  THAT  THE
CHIEF  FISCAL OFFICER OF THE GOVERNMENT INVOLVED DEDUCT FROM THE COMPEN-
SATION OF EACH SUCH EMPLOYEE AN AMOUNT EQUAL TO TWICE HIS OR  HER  DAILY
RATE  OF  PAY  FOR  EACH  DAY OR PART THEREOF IT WAS FOUND HE OR SHE HAD
VIOLATED THIS SUBDIVISION. IF THE ARBITRATOR FINDS  THAT  THE  OBJECTING
EMPLOYEE VIOLATED THIS SUBDIVISION AND FURTHER FINDS THAT THE GOVERNMENT
INVOLVED  PROVOKED SUCH VIOLATION HE OR SHE SHALL REQUIRE THAT THE CHIEF
FISCAL OFFICER OF THE GOVERNMENT INVOLVED DEDUCT FROM  THE  COMPENSATION
OF  EACH  SUCH EMPLOYEE AN AMOUNT WHICH SHALL BE NO GREATER THAN ONE AND
ONE-HALF NOR LESS THAN AN AMOUNT EQUAL TO, HIS OR HER DAILY RATE OF  PAY
FOR  EACH  DAY  OR PART THEREOF IT WAS FOUND HE OR SHE HAD VIOLATED THIS
SUBDIVISION. THE DETERMINATION OF THE  ARBITRATOR  SHALL  BE  REVIEWABLE
PURSUANT TO ARTICLE SEVENTY-FIVE OF THE CIVIL PRACTICE LAW AND RULES.
  S  4. Subdivision 2 of section 210 of the civil service law is amended
by adding a new paragraph (h) to read as follows:
  (H) OBJECTIONS BY EMPLOYEE ORGANIZATIONS.  NOTWITHSTANDING  ANY  OTHER
PROVISION  OF  LAW  TO  THE CONTRARY, A RECOGNIZED OR CERTIFIED EMPLOYEE
ORGANIZATION MAY, WHERE SUCH OBJECTION IS BASED SOLELY UPON  PROVOCATION
ON THE PART OF THE GOVERNMENT INVOLVED, FILE OBJECTIONS ON BEHALF OF ALL
PERSONS  REPRESENTED  BY  SUCH  EMPLOYEE  ORGANIZATION  PURSUANT  TO THE
PROVISIONS OF PARAGRAPH (F) OF THIS SUBDIVISION.
  S 5. This act shall take effect immediately.