Many of New York’s public employees are protected by Section 75 of the Civil Service Law. Public employees include employees of the state, counties, towns, villages, cities, and special districts such as fire districts, library districts, sanitation districts, and school districts. The employment lawyers on Long Island of Famighetti & Weinick are experienced in Section 75 proceedings and may be able to help you understand your rights.
Section 75 sets forth protections for certain public employees. Section 75 prohibits the discipline or termination of a public employee except for incompetence or misconduct. Thus, the law alters the traditional at-will employment rule by which employees can usually be terminated for any reason, as long as the reason is not illegal, such as discrimination.
Not all public employees are protected by Section 75. For example, probationary employees are not covered. Generally, employees must serve a period of probation during which their performance can be evaluated. The length of time an employee must serve probation can vary based on the position or prior service, such as serving probation in a position to which the employee was promoted.
Other job categories are also exempt from Section 75. For example, elected officials and heads of departments are “unclassified” civil service positions are not covered by Section 75. Further, tenured teachers are protected under the Education law, not Section 75.
Before termination, employees protected by Section 75 must have charges issued against them. The employee has the right to have representation, either through a union, or with a private lawyer. The employee has a right to respond or “answer” the charges.
Employees also have the right to a hearing. A hearing is basically like a trial. A hearing officer takes evidence, which like a trial, can include documents and testimony. The rules of evidence, however, are more relaxed than in Court which means that some evidence which may not be admitted in Court, may be admissible in a Section 75 hearing.
The employee’s lawyer or representative can challenge the employer’s evidence, cross-examine witnesses, and introduce other evidence to refute the employer’s evidence of misconduct or incompetence.
After all the evidence is heard, the hearing officer will make a determination as to whether the employee is “guilty” of the charges and if so, will propose a penalty.
Decisions issued after a Section 75 hearing can be appealed by filing an Article 78 proceeding. An Article 78 proceeding is a special proceeding instituted in New York State Supreme Court by filing a petition and notice of petition. Article 78s have strict time limits and must be started within 4 months of the final decision from the Section 75. Therefore, if you have received an unfavorable decision from a Section 75 hearing, you should contact an Article 78 lawyer immediately. In an Article 78, the employee must show that the decision was arbitrary and capricious or that the penalty imposed shocks the conscience. Some ways to show the decision was arbitrary and capricious include showing that the employer deviated from procedures or that the decision was not based on substantial facts.
Employers who did not follow the procedures of Section 75 may be subject to lawsuits and to having the Section 75 charges dismissed. Employees who are terminated without a hearing, but who were subject to Section 75 protections may have a due process claim against the employer.
Further, oftentimes an employer’s attempts to terminate an employer can signal other unlawful motivations. Public employees have rights under the First Amendment and Fourteenth Amendment.
The lawyers at Famighetti & Weinick PLLC are experienced in handling Section 75 matters and other public employee issues such as First Amendment violations. For questions about Section 75, Article 78, or other public employment issues, call us at 631-352-0050. We also have resources on our website at http://linycemploymentlaw.com.
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