OATH Recent Decisions

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Personnel

ALJ Kevin F. Casey recommended a 15-day suspension without pay for a correction officer who failed to disclose his possession of a handgun to the Department of Correction. Respondent served as a military police officer with the National Guard and was authorized to possess a handgun as his service weapon. While federal law authorized respondent to possess the handgun, it did not exempt him from the Department’s requirement that employees disclose any firearms they possess and accurately complete personal information forms. Dep’t of Correction v. Anderson, OATH Index No. 1280/23 (Apr. 6, 2023).

Vehicle Seizure

ALJ Tiffany Hamilton ordered the release of a vehicle seized by the Police Department as an instrumentality of crime. Respondent’s vehicle was seized following his arrest for criminal possession of a weapon in the second degree and other related charges. The ALJ found that the Police Department failed to satisfy Krimstock’s dual notice requirement, crediting respondent’s testimony that he was not notified of his right to a retention hearing at the time of his arrest. The ALJ also found there was no credible evidence that the notice was mailed to respondent. The affidavit of mailing contained several material errors including the date of mailing, the date of the affidavit, and respondent’s Florida address. Police Dep’t v. Moore, OATH Index No. 2225/23, mem. dec. (March 30, 2023).

ALJ Kevin F. Casey ordered the release of a vehicle seized by the Police Department as an instrumentality of crime when respondent was arrested for criminal possession of a weapon. Following a traffic stop for an obstructed license plate and excessively tinted windows, the police recovered a handgun from the vehicle’s trunk. At the hearing, the Police Department failed to demonstrate that there was a valid basis for the traffic stop or that the handgun was lawfully seized by the police. Because the evidence failed to establish the legality of the inventory search, the Police Department also failed to show that the vehicle was used in the commission of a crime. Police Dep’t v. Franklin, OATH Index No. 2525/23, mem. dec. (Apr. 4, 2023).

Worker Protection

ALJ Astrid B. Gloade recommended relief to a former fast food worker and a civil penalty of $126,500 against the owner and the manager of a fast-food establishment for violating the Fair Workweek Law. The ALJ found that respondents cancelled, shortened, lengthened, or added shifts to a former fast food employee’s schedule 72 times without paying her the schedule change premium required under the law. The ALJ also found that respondents failed to offer newly available shifts to the incumbent employee before offering the shifts to newly hired employees. In an earlier decision on a motion for summary judgment, the ALJ found that respondents required the employee to work shifts with fewer than 11 hours between the end of the first shift and the beginning of the second shift, failed to provide the former fast food worker with written work schedules with 14-days’ notice, failed to obtain the employee’s written consent for adding time to the employee’s work schedule, failed to post notice of fast food worker’s rights in the workplace, and failed to provide petitioner with access to records and information during an investigation. The recommendation reflected relief and penalties for the findings in their entirety. Dep’t of Consumer and Worker Protection v. 557 Burger Corp., OATH Index No. 2384/19 (Apr. 21, 2023).

Contracts

The Contract Dispute Resolution Board, chaired by ALJ Orlando Rodriguez, denied a contractor’s claim for additional compensation due to its failure to keep daily records of the work performed, as required by the contract. After contracting with the Department of Design and Construction (“DDC”) to replace the roof of a men’s shelter, the contractor was directed by DDC to maintain a red maple tree in the middle of the contract staging area, creating multiple logistical impacts on the project. The contractor requested $142,782.04 for the extra work. DDC determined the work to be worth $21,399. The CDRB denied the contractor’s challenge of DDC’s determination, finding that the contractor waived its claim for extra compensation by failing to comply with the contract’s record-keeping requirements for extra work. NSP Enterprises, Inc. v. Dep’t of Design & Construction, OATH Index No. 1524/22, mem. dec. (Apr. 24, 2023).