THE TEACHER'S LAWYER: NYC School Staff Win Their 2020 Vacation Days Back

Thursday, January 6, 2022

NYC School Staff Win Their 2020 Vacation Days Back

A big win for United Federation of Teachers NYC school staff that lost their Spring Break vacation days in 2020.

See letter from union president Michael Mulgrew below for details.

At this moment when we are dealing with so much at our schools, we have finally received a decision on our spring break arbitration. At a hearing before an independent arbitrator on Dec. 15, we argued that the full value of the days we worked over the 2020 spring break must be given to us and that CAR days — which the DOE gave members as compensation for four of those days — were unacceptable.

The arbitrator issued his decision today: Members will receive a vacation day — a brand-new type of day that UFT members have never had before — for each day they worked during the 2020 spring break.

The arbitrator ruled that a vacation day can be used on any workday of the school year. You may use a vacation day any way you wish, and you can take these days either one at a time or consecutively without fear of any disciplinary action.

Vacation days are to be granted. The only time an administrator may refuse the use of a vacation day is for a compelling reason.

The arbitrator set out these basic parameters concerning what would not constitute a compelling reason:

If many staff request the same day, it cannot lead to a blanket refusal of all requests. Vacation days must still be granted to a reasonable number of staff in seniority order among those who requested it.
A staff member who is one of only a small number of employees in a given title or license cannot be denied a vacation day on that basis alone. But it could be relevant in terms of the timing of the vacation day (i.e., if the only physics teacher asked to use several vacation days in the week before the physics Regents).
The proximity of a requested vacation day to a holiday recess cannot by itself be a compelling reason for refusal.

When you use a vacation day, you should let your principal know via email as soon as possible of your intention, but you must give at least 10 school days’ notice. Your principal will have 48 hours to notify you if they believe they have a compelling reason to deny you the day. If they don’t get back to you, the vacation day is considered granted.

The arbitrator has also set out an expedited appeals process that UFT members can use if they believe the principal has denied a vacation day without a compelling reason. The DOE and the UFT will be notified of every denial. If the DOE and the UFT do not agree that there is a compelling reason, it will immediately go to expedited arbitration.

A vacation day is worth the full monetary value of a full workday. When you leave service or retire, vacation days will be exchanged at a rate of one vacation day for one full day. People can choose, therefore, between taking their vacation time or being paid at the end of their DOE career for each additional day they worked during that spring break.

How is a vacation day different from a CAR day?

Definition of a CAR day:

A CAR day is a bankable day that can be used as a sick day or a personal day.
If you use a CAR day as a personal day, it can be subject to supervisory approval. You may need to provide documentation to support your use of a CAR day as a personal day.
In certain circumstances, the use of a CAR day requires a doctor’s note.
When you retire or leave service, CAR days will be paid out at a rate of two CAR days for one full workday (2 for 1), essentially making a CAR day worth half the value of a full workday.

Definition of a vacation day:

Vacation days can be used at any time, including before or after a holiday or recess, and no reason needs to be given. Supervisors must have a compelling reason to deny a vacation day.
A vacation day does not require a doctor’s note.
When you retire or leave service, vacation days will be paid out at a rate of one vacation day for one full workday (1 for 1). Vacation days do not expire, and therefore their value increases over time as your salary increases. A vacation day will be worth the full value of a workday at the rate you are paid at the time you retire or leave service.

Other important points to note

The arbitrator has instructed the DOE to credit these vacation days to you effective Feb. 1.

Vacation days will be given for each day that you worked during the 2020 spring break. If you took religious observance days or time off during the break, you will only be given vacation days for the days you worked.

Read the arbitrator’s decision

Tomorrow afternoon, in the School Year 2020-21 FAQ on the UFT website, we will post a new spring break arbitration FAQ and an online inquiry form if you have further questions.

The UFT argued for a cash payment, and while the arbitrator agreed that we should be fully compensated, the members of five unions were affected and he didn’t want the city to face that financial burden with so much uncertainty due to this pandemic.

We all lost a vacation in 2020, and vacation time was what we are owed — not sick (CAR) time as the DOE argued in the arbitration. The union was able to get the arbitrator to see it from our point of view.

I want to thank our Grievance Department and its reps for their work on this case, and I want to thank all of you for your patience while this case worked its way through the process.

Sincerely,

Michael Mulgrew

UFT President

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Polayes v City of New York 2014 NY Slip Op 03958 Decided on June 3, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on June 3, 2014 Tom, J.P., Renwick, Andrias, Freedman, Clark, JJ. 12649 156710/12 [*1] In re Jonathan Polayes, Petitioner-Appellant, v City of New York, at al., Respondents-Respondents. Glass Krakower LLC, New York (John Hogrogian of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondents. Order, Supreme Court, New York County (Margaret A. Chan, J.), entered January 18, 2013, which denied the petition to vacate an arbitration award imposed pursuant to Education Law § 3020-a, finding petitioner guilty of teacher misconduct and terminating his employment with respondent New York City Department of Education, and granted respondents' cross motion to dismiss the proceeding and confirm the award, unanimously reversed, on the law, without costs, the petition granted, the cross motion denied, and the arbitration award vacated. The evidence presented at the arbitration hearing established that petitioner, while acting as a substitute teacher covering a double-period class for high school senior students, participated in conversation with a group of the students concerning their college choices and post-graduation internship plans. The class took place during the height of the college application process, and right before the winter break. During the conversation, petitioner offered to serve as a contact point for a potential internship at a media company for a female student who had expressed an interest in film and media. The student testified that she appreciated this and was not offended by the offer. When a male student then indicated that he did not want to do an internship or work during the summer after graduation, petitioner whispered to the female student something to the effect of "watch how they react to this," and proceeded to tell the students about a valuable internship experience he had before he went to college. The female student also was not offended by this. When another male student expressed his interest in attending a college that was widely reported to be a "party school," petitioner asked him something to the effect of, "so you're the type to party with," or "you want to go to school to party." The student testified that he was "not offended in any way" by the comment. Rather, the several students who testified generally indicated that they enjoyed the class and found it to have been more interesting than expected from a substitute. Respondent has not identified any rule or statute that classifies such statements and action as teacher misconduct. Under all the circumstances, the finding that petitioner's actions constituted teacher misconduct is not supported by adequate evidence, and is arbitrary and capricious (see Lackow v Department of Educ. [or "Board"]; of City of N.Y., 51 AD3d 563, 567 [1st Dept 2008]). We note that petitioner had a disciplinary history including findings of non-sexual touching of students, and that two prior disciplinary awards expressly warned him not to touch his students again. However, it is undisputed that petitioner did not touch any of his students in the case at bar. Thus, contrary to the arbitrator's finding, the evidence did not indicate that petitioner failed to heed prior warnings (cf. Matter of Forte v Mills, 250 AD2d 882. 884 [3d Dept 1998]; Matter of Jerry v Board of Educ. of City School Dist. of City of Syracuse, 50 AD2d 149, 157 [4th Dept 1975], appeal dismissed 39 NY2d 1057 [1976]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: JUNE 3, 2014 CLERK

Guzman v. NYCDOE et al., App. Div. 1st Dept Decided on April 4, 2013 Tom, J.P., Andrias, Saxe, Abdus-Salaam, Gische, JJ. 9727 106140/11 [*1]In re Minerva Guzman, Petitioner-Appellant, v City of New York, et al., Respondents-Respondents. Glass Krakower LLP, New York (Bryan D. Glass of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), for respondents. Order and judgment (one paper), Supreme Court, New York County (Shlomo S. Hagler, J.), entered March 5, 2012, confirming an arbitration award, dated May 4, 2011, which terminated petitioner's employment as a public school teacher upon a finding that she engaged in a fraudulent scheme to enroll her granddaughter in public school using a false address, and dismissing the proceeding brought pursuant to Education Law § 3020-a and CPLR article 75, unanimously modified, on the law, to vacate the finding of guilt as to Specification 1-A-1 (that petitioner engaged in the scheme to avoid payment of non-resident tuition) and vacate the penalty of termination, and to remand the matter for the imposition of an appropriate penalty, and otherwise affirmed, without costs. Respondent Department of Education conceded at the hearing that petitioner's granddaughter was entitled to a tuition-free education in New York City public schools, and the hearing officer made no finding that the child was not a City resident. Nor does the record establish that the child was not a City resident. Thus, there is no rational basis upon which to conclude that petitioner engaged in a scheme with the purpose of defrauding respondent out of non-resident tuition (see Motor Veh. Mfrs. Assn. of U.S. v State of New York, 75 NY2d 175, 186 [1990]; Lackow v Department of Educ. [or "Board"] of City of N.Y., 51 AD3d 563, 567 [1st Dept 2008]). However, as petitioner concedes, substantial evidence supports the charge that she acted in concert to file a false instrument (Specification 1-B), to wit, engaged in a scheme to use a school aide's address to enroll her granddaughter in the school at which she taught, and that she [*2]improperly obtained the school's services (Specification 1-A-2), since the child should not have been enrolled there. In light of the foregoing, we remand for the imposition of an appropriate lesser penalty. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: APRIL 4, 2013 CLERK

FREQUENTLY ASKED QUESTIONS (FAQ) ABOUT SECTION 3020-A

Are hearings held before a hearing officer or a panel?

Disciplinary charges brought by an employing board against a tenured employee are heard by a single hearing officer except when the charges concern pedagogical incompetence or issues involving pedagogical judgement. In these cases only, the employee may choose to have the charges heard by either a single hearing officer or a three-member panel.

What types of changes are considered pedagogical?

While the term "pedagogical" is not defined in either the statute or the Commissioner's Regulations, charges that fall into that category include inability to control a class, failure to prepare required lesson plans, failure to maintain certification, and other matters that directly pertain to teaching techniques and issues of this nature.

Who provides the list of Hearing Officers?

The American Arbitration Association (AAA) maintains the panel of potential hearing officers for Section 3020-a proceedings. This association also provides a list for each individual proceeding.

Is there a fee associated with requesting a hearing?

The AAA is a non profit organization which relies on administrative fees to continue providing services. Commissioner's Regulations as amended by the Board of Regents in September 1994 stipulate that the fee for providing the list of potential hearing officers for Section 3020-a proceedings is to be paid by the School District preferring the charges. This fee is $150.00. If the parties are unable to mutually select a hearing officer and request that the AAA make the selection, an additional fee of $50.00 will be required.

When is a hearing commenced?

Under the law, a hearing is commenced when the State Education Department submits a request to AAA for a list of potential hearing officers.

As a taxpayer, don't I have the right to know if a teacher in our school has been brought up on charges?

Section 3020-a provides an avenue for resolving disciplinary issues between an employer and an employing board. Until an individual has been found guilty by a hearing officer or hearing panel, all aspects of the disciplinary proceeding are strictly confidential. If the employee is found to be guilty of one or more of the charges, the record is then available pursuant to the Freedom of Information Law.

Thursday, January 6, 2022

NYC School Staff Win Their 2020 Vacation Days Back

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