Convicted Bus Driver | Workplace Searches | Yellowstone Injunction

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Convicted Bus Driver Applicant

Convict ed Bus Driver ApplicantRecently in Dempsey v. N.Y.C. Dept. of Educ., __ A.D.3d __ (July 16, 2013) a divided panel of the First Department of the Appellate Division reversed the Supreme Court, and held that the refusal of the Department of Education of the City of New York (“DOE”) to certify a former heroin addict who had a drug-related conviction as a school bus driver, was proper.

The driver, who became addicted to drugs at age 15 but has for almost two decades transported children as a private bus driver and has been drug free for all that time after successfully completing a treatment program, challenged the DOE’s refusal in an Article 78 proceeding as arbitrary, capricious and in violation of New York State Correction Law.

In a prior newsletter we wrote that employers and employees should be aware of the New York State Human Rights Law which states that a job applicant may not be denied employment or licensure because of his or her conviction record, unless there is a direct relationship between the offense and the job or license sought, or unless hiring or licensure would create an unreasonable risk to property or to public or individual safety. This law applies to employers with ten or more employees. The eight factors to consider in analyzing whether employment may be denied are found in N.Y. Correction Law, Article 23-A.

In this appeal, the majority opinion found that DOE considered the eight factors in connection with an application for a license, including the position’s duties and responsibilities, the bearing, if any, the criminal offense will have on “fitness or ability” to perform those duties, the time that has elapsed since the occurrence of the crime, the seriousness of the crime, information about the applicant’s reputation, etc., and the legitimate interest of the agency in protecting the safety and welfare of specific individuals or the general public. The Court also recognized that the DOE’s regulations provide that in reviewing the record of an applicant who has a prior criminal conviction, the DOE is “particularly concerned with offenses, among others, that involve the possession, distribution or selling of controlled substances.” The Court noted that although “petitioner avers he has been drug free since 1994, and his crimes were directly related to his drug addiction at the time, the offenses were not youthful indiscretions (he was 41 years old), but were of a serious nature since each involved narcotics.” The Appellate Court concluded that the Supreme Court had improperly “re-weighed the factors” and “substituted its own judgment” for that of the DOE. It found that “the nature of the criminal conduct for which petitioner was convicted has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities,” noting further that the “position for which petitioner seeks certification would place him in direct daily contact with school aged children and require him to closely monitor and supervise them.”

School bus transportation is a highly regulated field. Pursuant to New York State and federal regulations, persons seeking a commercial driver’s license to drive a school bus must be “physically qualified” to do so. This means many things; among them, that the person cannot have a “current clinical diagnosis of alcoholism, or currently use any non-prescription habit forming drug, i.e., an amphetamine or narcotic. If prescription, the driver’s doctor must advise the driver whether or not the drug will not affect the driver’s ability to safely operate a school bus.” Also, the person cannot have had a conviction for driving while under the influence of alcohol or drugs while driving a commercial vehicle, or have had two such convictions in a non-commercial vehicle in a ten year period. These, among other things, make a driver unqualified to obtain a commercial license and drive a school bus.

A more stringent company policy against hiring drivers with any previous DWI convictions used (and against retaining current drivers who are convicted as well) is permissible, even if the candidate or current employee is now a recovering alcoholic or addict (and possibly protected under the Americans with Disabilities Act), because such a policy is facially neutral, applies equally to non-disabled persons, and such a policy is not even based upon ones alcoholismor addiction, but rather the decision to drive while drunk.

Also, persons holding commercial driver’s licenses are required by State or federal laws to be tested for drugs and alcohol. Such tests may only be administered while on duty, or immediately before or after. A failed alcohol test (.04 or higher), for example, must result in immediate removal from “safety-sensitive duties.” An employee who fails a test, and wishes to return to duty, must complete the “return-to-duty” process laid out in federal regulations, but it appears that employers are not required to offer the employee a return to duty.

Big Brother: The Scope Of Warrantless Workplace Searches

Big Brother: The Sc ope Of Warrantless Workplace Searches The New York State Court of Appeals recently held, in Cunningham v. N.Y.S. Dept. of Labor, 2013 N.Y. Slip Op. 04838 (June 27, 2013), that a public employer performed an unreasonable unconstitutional search of a public employee when it placed a GPS device on the employee’s personal, private car, and tracked its movements for a month, including evenings, weekends and several days when the employee was on vacation, to investigate workplace misconduct. It also concluded, however, that the government can attach such a device to a public employee’s personal vehicle without a warrant.

In Cunningham, the public employee was suspected of submitting false time reports, and taking unauthorized absences from duty and falsifying records to conceal those absences. In 2008, the Department of Labor commenced an investigation into these allegations, and attached a GPS device to the employee’s own car, without his knowledge, to track the employee’s location. Ultimately, the investigation resulted in eleven charges brought against the employee, of which four were dependent solely on evidence obtained from the GPS device, and another four charges were supported by independent evidence and supplemented by evidence from the GPS.

The Court of Appeals recognized that, unlike a search by law enforcement, a public employer may conduct a warrantless search of an employee suspected of misconduct. This rule is known as the “workplace” exception to the warrant requirement, and was previously explained by the U.S. Supreme Court as follows:

In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an employee’s office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unduly burdensome. Imposing unwieldy warrant procedures in such cases upon supervisors, who would otherwise have no reason to be familiar with such procedures, is simply unreasonable.

O’Connor v. Ortega, 480 U.S. 709, 722 (1987).

Simply because a search does not require a warrant, does not mean that it comports with either the State or federal Constitutions — the search must still be “reasonable” in its scope. Here, the Court held that the search was “extremely intrusive,” and therefore it was unreasonable:

We cannot find, however, that this search was reasonable in its scope. It was, in the words of the T.L.O. Court quoted in O’Connor, “excessively intrusive.” It examined much activity with which the State had no legitimate concern — i.e., it tracked petitioner on all evenings, on all weekends and on vacation. Perhaps it would be impossible, or unreasonably difficult, so to limit a GPS search of an employee’s car as to eliminate all surveillance of private activity — especially when the employee chooses to go home in the middle of the day, and to conceal this from his employer. But surely it would have been possible to stop short of seven-day, twenty-four hour surveillance for a full month. The State managed to remove a GPS device from petitioner’s car three times when it suited the State’s convenience to do so — twice to replace it with a new device, and a third time after the surveillance ended. Why could it not also have removed the device when, for example, petitioner was about to start his annual vacation?

Cunningham, at 3.

As a result, the Court held that the four charges which were supported solely on GPS evidence must be dismissed, and remanded the matter to the Commissioner of Labor for redetermination of the penalty. It should be noted that the holding in this case is constrained to public employers and employees; generally, a private employer cannot be held liable for depriving an employee of any constitutional rights, as the Constitution protects the citizenry from government, not private, action only.

Tenant Can’t “Undue” An Incurable Default

Tenant Can’t “Undue” A n Incurable DefaultRecently in C.C.B. Prep Testing of N.Y. v. 73 M&C Realty, a commercial tenant was denied a Yellowstone injunction against its landlord because of an unauthorized assignment resulting in an incurable default.

As succinctly stated by the Court in C.C.B., “[a] ‘Yellowstone’ injunction maintains the status quo so that a commercial tenant, when confronted by a threat of termination of its lease, may protect its investment in the leasehold by obtaining a stay tolling the period of the notice to cure. Given an adverse determination on the merits, the tenant may cure the default and avoid a forfeiture of the lease.”

Since the Court of Appeals’ decision in First Nat’l Stores v. Yellowstone Shopping Ctr., 21 N.Y.2d 630, 290 N.Y.S.2d 721 (1968), tenants have developed a practice of obtaining a stay of the cure period before it expires to preserve a lease until the merits of a dispute over the default notice may be resolved in court. Effectively, tenants have learned from the mistake of the tenant in the case of Yellowstone who commenced an action for declaratory judgment on the last day of the cure period, but did not obtain a temporary restraining order. The Court of Appeals ultimately held that in absence of the injunction, it was powerless to revive the expired lease. Significantly, the courts have since granted such injunctive relief on less than the normal showing required for a preliminary injunction because of the threat of a forfeiture of the valuable leasehold interest.

Thirty years later, the Court of Appeals revisited its Yellowstone decision in the case of Grabuard Mollen Horowitz Pomeranz & Shapiro v. 600 Third Ave. Assocs., 93 N.Y.2d 508, 693 N.Y.S.2d 91 (1999). In that case, the Court of Appeals analyzed what it recognized was the seminal decision to a “new era of commercial landlord-tenant law in New York State [,]” creating a “remedy for tenants when confronted with a tangible threat of lease termination.”

Importantly, in reaffirming the standards which a party requesting the Yellowstone injunction must demonstrate, the Court of Appeals re-enforced the restrictive nature of the common law remedy that has evolved out of its original decision in Yellowstone, concluding that “[t]hese standards reflect and reenforce the limited purpose of a Yellowstone injunction: to stop the running of the applicable cure period.”

For example, it is a well established tenet in Yellowstone applications that if the application is made after the expiration of the cure period, and even before the expiration of subsequent notice of termination of lease, a court is divested of any power to issue the injunction, regardless of the merits of the tenant’s position on the default, because the court cannot “stop” what has already run.

In C.C.B., the Court recognized that the case of Yellowstone, “and its progeny established a four-pronged test for determining whether a ‘Yellowstone’ injunction should be granted. The requirements for obtaining ‘Yellowstone’ relief are as follows: (1) plaintiff holds a commercial lease, (2) the landlords have served a notice to cure, (3) the referenced cure period has not expired, and (4) plaintiff has demonstrated an ability and willingness to ‘cure.’”

In the underlying action, the tenant C.C.B. sought an order declaring that its lease was properly assigned to Learning Tree, based on a waiver. The lease expressly provided that a “transfer of a majority of the stock of the corporate tenant shall be deemed an assignment,” requiring Landlord’s written permission. Lending Tree had purchased the tenant’s stock without obtaining the original landlord’s consent and began to pay the rent, which the original landlords accepted. When the new landlord purchased the premises, it found out about the stock purchase and served tenant with a notice to cure alleging it was in default by assigning or subletting the lease to Learning Tree without Landlord’s written consent. The tenant claimed that the original landlords were fully aware of the change in ownership and accepted rent for over three years from Learning Tree. The Court, however, recognized that the parties to the lease mutually agreed that conduct which might otherwise give rise to an inference of waiver, would not be deemed a waiver of the specific bargained for provision of the lease – the typical “no waiver clause.” Because the assignment had already occurred in violation of the lease, the Court concluded that the tenant could not establish the fourth and last requirement for obtaining a Yellowstone injunction; the tenant “cannot cure this defect.”The injunction was denied.

Turning to the waiver issue, the Court noted the common law that ordinarily the acceptance of rent by a landlord with knowledge of conduct which is claimed to be a default can constitute a waiver of that default by landlord. However, the Court also recognize that the Court of Appeals has previously held that “while the waiver may be inferred from the acceptance of rent in some circumstances, it may not be inferred, and certainly not as a matter of law, to frustrate the reasonable expectations of the parties embodied in a lease when they have expressly agreed otherwise.” Thus, the Court concluded that the language of the “no waiver clause” was clear and unambiguous and the parties having mutually assented to its terms, the clause should be enforced to preclude a finding of waiver of the conditions, by the acceptance of rent for three years.

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