OATH Recent Decisions

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Personnel

ALJ Christine Stecura recommended an agency engage with its employee in a cooperative dialogue to discuss potential accommodations for the employee’s disability. In a Section 72 proceeding regarding the employee’s fitness to perform her duties, the ALJ found the agency established that the employee has a disability which rendered her unfit to perform her duties when working physically in the office. However, the employee had requested a reasonable accommodation to work from home and the agency failed to engage in a cooperative dialogue with her to find whether her disability could be reasonably accommodated. The ALJ further found the agency failed to establish that it had probable cause to place respondent on one of two emergency leaves and recommended restoration of salary or leave balance to the employee for that period of emergency leave. Dep’t of Social Services (Human Resources Admin.) v. Anonymous, OATH Index No. 3242/23 (Oct. 6, 2023).

ALJ Julia Davis recommended placing an employee on an involuntary leave of absence because the employee’s disability renders her unable to perform the functions of her job. The ALJ found the employee’s disability caused frequent outbursts at work, interfered with her ability to interact with colleagues and supervisors, prevented her from completing the training required for her position, and resulted in other disruptive behavior at work. Further, the employee has neither acknowledged her issues nor sought help and there is no present possibility that her medical condition will improve. The ALJ also recommended dismissal of misconduct charges against the employee, finding penalties cannot be imposed if the alleged acts of misconduct were caused by a disability. Dep’t of Social Services (Human Resources Admin.) v. T.B., OATH Index No. 1868/23 (Oct. 19, 2023).

Real Property

ALJ Kevin F. Casey recommended reducing a Loft Law tenant’s rent based on the owner’s legalization work that converted the tenant’s apartment from a three-bedroom unit to a one-bedroom unit. The ALJ found that, in 2014, when tenant moved in, the apartment was configured and advertised as a three-bedroom, three-bathroom unit with a monthly rent of $6,850. Two of these bedrooms were in the unit’s cellar, which was directly accessible from the unit’s main floor. In legalizing the unit, the owner converted the two bedrooms in the cellar into storage space and removed direct access between the main floor and the cellar. The conversion of the two cellar-level bedrooms reduced residential floor area by 482 square feet, representing a 30.8% reduction to the unit’s residential space. The ALJ recommended reducing the base rent by 30.8% to $4,740. Matter of Capone, OATH Index No. 203/24 (Oct. 13, 2023).

Worker Protection

ALJ Faye Lewis recommended penalties against an employer for numerous violations of the Earned Sick and Safe Time Act (“ESSTA”). The ALJ found that respondents did not maintain a written sick time policy and failed to notify employees of their rights under the ESSTA or provide them with information about sick time accrual. While some employees occasionally received paid sick leave, employees were generally not provided paid sick leave. In addition, some employees were required to find and pay coworkers to cover their shifts when calling out sick. Respondents also impermissibly charged the time employees took to receive COVID-19 vaccinations to their sick leave. The ALJ further found that after workers filed a complaint with petitioner, respondents retaliated against them and interfered with petitioner’s investigation by making threatening comments, coaching them on how to respond to investigative queries, issuing disciplinary counseling notices to employees who refused to be coached, refusing to grant any time off during the pendency of the investigation, and firing an employee in retaliation for the employee’s perceived involvement in petitioner’s investigation. Respondents also provided falsified records to petitioner during its investigation. The ALJ recommended a total civil penalty of $32,300 be assessed, plus employee relief of $27,894.24 and an additional $27,608.58 in back pay, plus interest, to the fired employee. Dep’t of Consumer and Worker Protection v. Champion Security Services, Inc., OATH Index No. 2293/21 (October 23, 2023).

Campaign Finance

ALJ Orlando Rodriguez recommended a former candidate for City Council be deemed ineligible for future public matching funds and forfeit any public funds previously received during his 2010 campaign for City Council. The city’s matching funds program provides participating candidates with public funds based on contributions reported by the campaign. The ALJ found that during respondent’s 2010 campaign for City Council, he participated in the matching funds program and signed a certification agreeing to abide by its rules. Respondent accepted fraudulent contributions from straw donors, instructed straw donors to sign documents affirming that the contribution was made from their funds, then knowingly submitted these false documents to petitioner. Campaign Finance Board. v. Baldeo, OATH Index No. 1166/23 (Oct. 31, 2023).